Irides: Weekly global patent litigation update

This edition features updates from: Denmark and the Unified Patent Court (UPC).

The Irides Weekly Update is our round-up of patent litigation news highlights from around the world.
 

Denmark - stop press

The Maritime and Commercial Court sets boundaries on Falsified Medicines Directive compliant repackaging in landmark parallel import decision.

On 9 February 2026, the Danish Maritime and Commercial Court (DMCC) handed down a significant decision concerning the parallel importation of medicinal products in light of the Falsified Medicines Directive 2011/62/EU (FMD).

This case involved ten adjoined cases brought by several pharmaceutical manufacturers against parallel importers Abacus, 2care4 and Paranova. The central issue in this case was whether parallel importers infringed the trade mark rights by repackaging medicinal products into new outer packaging rather than simply "relabelling" the original packaging. The Defendants argued that the FDM required the repackaging such that they could not be held to infringe under EU trade mark law.

Following the CJEU Case C-224/20 of November 2022, the DMCC found that the FDM does not require repackaging into new outer packaging and on that basis the repackaging did constitute trade mark infringement, with damages to be determined in later proceedings. 
 

Denmark

The Maritime and Commercial Court upholds the validity of Bristol-Meyers Squibb’s patent for apixaban and grants injunction against Teva.

In October 2025 the DMCC granted Bristol Myers Squibbs (BMS) a preliminary injunction against Teva for infringement of BMS’s patent for apixaban, a blockbuster anticoagulant medicine. By its judgment on the merits dated 17 February 2026, the DMCC has upheld the validity of the patent and made the injunction final.

BMS’s patent DK/EP 1 427 415 (the Patent) and its Supplementary Protection Certificate are in force until 20 November 2026 and have been the subject of widespread litigation across Europe, with varying results. In 2023 the UK Court of Appeal found the UK designation of the Patent invalid for lack of plausibility (see here for an explanation of this decision as well detailed background information on the Patent), and the DMCC’s decision underlines the fact that the law relating to plausibility has developed in different ways across Europe. 

It was accepted by the DMCC, as it was by the English Court, that BMS’ patent application for apixaban, as filed, did not disclose data showing that apixaban was a factor Xa inhibitor. Whereas this led the English Court to find that it was not plausible that apixaban would have any utility that flowed from factor Xa binding, the DMCC, relying on the EPO’s Enlarged Board of Appeal decision in G2/21, held that the skilled person would deduce the useful binding activity from other aspects of the application and hence that this was covered by the technical teachings of the patent. Thus deduced to a level that was plausible, BMS could rely on post-filed data to demonstrate the technical effect. There was an argument as to whether it was necessary for the claimed improvement in technical effect to be made plausible by the application as filed. Citing other EPO case law, the DMCC decided that an improvement could be implicitly derivable from the technical effect deduced from from the application and then made good by the later filed data. 

Teva’s allegation of lack of inventive step was therefore rejected. 

Teva further challenged the Patent on the basis of insufficiency and lack of novelty.  On insufficiency, the DMCC held, analogously with inventive step, that Teva had “not demonstrated that it would not be credible to the skilled person that the therapeutic effect was achieved” from reading the application and thus the Patent was sufficient.  Teva’s novelty challenge also failed as it relied on a finding of a loss of priority.  Applying the principles of leniency from EPO case G1/22, the DMCC noted “the EPO should adapt itself to the lowest standards established under national laws and accept informal or tacit transfers of priority rights under almost any circumstances” and priority was maintained.
 

UPC 

Local Division reinforces  front‑loaded procedure, primacy of grant language and orders that a commercial brochure fails as stand‑alone Prior Art. 
[UPC_CFI_26/2025, UPC_CFI_375/2025]

On 19 February 2026, the Vienna Local Division (LD) handed down its decision in Messerle GmbH v. Sabert Corporation Europe S.A., finding that EP 3 705 415, which relates to food packaging, valid, but not infringed by the Defendant’s Tray2Go product. This case stresses the front-loaded nature of the UPC.  

Construction

In construing claim 1, the Court was required to interpret the German wording of the claim, despite the language of the proceedings being in English. Although the Court did not address all features of the claim, a key issue particularly in infringement, was in relation to the meaning of German word “knick” which was found to describe a sharp, visible crease created by folding along a predefined line. 

Novelty

The Defendant initially submitted as prior art a brochure depicting an image of the food packing (D4). However, it was not clear what all four sides of the food container looked like. In light of this, the Defendant attempted to submit samples of the food container in its Reply to Defence to Counterclaim, arguing it was not new prior art, but supportive of the disclosure in D4 which only became necessary to submit when doubt arose as to what the other sides of the packaging looked like. The Court rejected the introduction of these samples, commenting that considering them would introduce hindsight when analysing D4. The samples should be considered prior public use, and it was too late to introduce this argument in the proceedings. 

Under r. 25.1 RoP, parties are under a strict obligation to set out their full case, including all facts and available evidence, as early as possible. The Court emphasised that any attempt to submit evidence of prior use at a later stage requires a compelling justification regarding timeliness, which the Defendant did not satisfy.

Because D4 did not directly and unambiguously disclose every technical feature of the claim, most notably the requirement for connection elements on at least two side walls of the lid, the patent was found novel. The inventive step challenge also failed, with there being no statement or argument as to why it would have been obvious to the skilled person to modify the packaging. 

Infringement

The Defendant’s product, Tray2Go, did not infringe claim 1 literally or under the doctrine of equivalents. This was because, Tray2Go used gradual bends, which were not “Knicks” i.e., a sharp crease, as required by claim 1. Similarly, there was no infringement under the doctrine of equivalents. Although the Court of Appeal has yet to set out a test for the doctrine of equivalents, the local division noted that there was agreement that the means must fulfil essentially the same function in order to achieve essentially the same effect. This was not the case for Tray2Go. 

As a result of both parties being unsuccessful in their primary claims, the Court ordered that each party bear its own costs. 
 

UPC

Court of Appeal refuses to stay revocation appeal pending EPO Opposition. 
[UPC-CoA-937/2025, UPC-CoA-938/2025]

Labrador initiated proceedings on 12 June 2024 by filing an infringement action against certain bioMérieux entities before the Düsseldorf LD. In response, bioMérieux UK filed a revocation action before the Milan Central Division (CD) on 30 August 2024, while other entities lodged a counterclaim for revocation within the Düsseldorf infringement proceedings.  

On 23 April 2025, the LD referred the counterclaim to the CD, which proceeded in parallel with the infringement action. On 23 October 2025, the CD rejected the counterclaim and maintained the patent in amended form. The bioMérieux companies filed an appeal on 23 December 2025. Shortly thereafter, on 28 January 2026, the LD dismissed the infringement action. No appeal has been filed against that dismissal to date.  

In light of the pending appeal and an ongoing EPO opposition, with oral proceedings scheduled for April 2026, the bioMérieux appellants applied for a stay of their appeal under Art. 33(10) UPCA and for an extension of the deadline to file their Statement of Grounds of Appeal. They argued that, since the EPO oral proceedings would take place approximately one month before the deadline for the Statement of response in the UPC appeal, a decision on the patent could be expected quickly. They further submitted that the Court of Appeal (CoA) should exercise its discretion to stay the proceedings because the Opposition Division would rule on validity well before the anticipated UPC appeal hearing, and that, in light of the preliminary opinion, revocation by the EPO was likely.  

On 17 February 2026, the CoA rejected both requests, emphasising the UPC’s strict timetable and the need to avoid unnecessary delay. It held that although an EPO decision may issue “rapidly,” this does not justify suspending UPC appeal proceedings, particularly where the EPO outcome is not yet final and can be appealed at a later stage. The Court reiterated that the principle of avoiding irreconcilable decisions does not require the UPC to stay revocation proceedings pending parallel opposition proceedings. It further stressed that the desire to align potential future infringement and revocation appeals cannot justify extensions where other procedural mechanisms, such as joint hearings under r. 220.5 RoP, are available. The Court noted that because the UPC appeal proceedings would still be ongoing at the time of the EPO decision, the parties would have sufficient opportunity to comment on the EPO decision within the existing procedural framework.

The CoA also refused the request to extend the time limit for filing the Statement of Grounds of Appeal. The deadline therefore remained 23 February 2026. 
 

UPC

Court of Appeal rules on both validity and infringement without remitting the case to the Local Division. 
[UPC_CoA_302/2025, UPC_CoA_305/2025]

On 17 February 2026, the CoA issued its decision in Rematec GmbH & Co. KG v Europe Forestry B.V., reinstating European patent EP 2 548 648 and overturning the Mannheim LD’s earlier revocation. Applying Art. 75 UPCA, the Court also exercised its power to give a final decision, ruling on both validity and infringement without remitting the case to the first instance tribunal. 

Both parties to the case operate in the forestry machinery sector, supplying mills for grinding wood chips. The patent concerns a mill design and although initially opted out of the UPC system was brought back in when Rematec withdrew the opt-out in 2023. At first instance, the LD revoked the patent in its entirety for lack of novelty and inventive step and dismissed the infringement action without examining the substantive issues of infringement. 

On appeal, Rematec sought reversal of the revocation, dismissal of the counterclaim for revocation, and, if claims 1 and 15 in granted form were found invalid, maintenance of the patent in amended form based on auxiliary requests. Having heard the appeal, the CoA found the LD’s analysis unsustainable and held that claims 1 and 15 of the patent were novel and inventive over the cited prior art. The defendant’s sufficiency and added-matter objections were rejected.

Referring to Art. 75 UPCA, the Court confirmed that it must issue a final decision and may remit only in exceptional circumstances, which were absent. It also clarified that where an independent claim is upheld, dependent claims cannot be attacked separately for lack of legal interest. As infringement had not been assessed below, the Court addressed it itself and found that Europe Forestry’s “Europe Grinders” and “Europe Chip Mills” fell within claim 1, in particular satisfying the key requirement that the mill be “free of sieves.” Bars spaced at ≥70 mm in the infringing products did not produce a sieve effect for standard chip sizes, so the discharge opening was considered to remain “sieve-free” and within the meaning of the claim. The Court also found indirect infringement of claim 15, as the mills were capable of carrying out the patented method (features 15a–15g). 

The remedies granted included an injunction, recall and removal, destruction or modification (including replacement of the ≥70 mm bars), an information order, liability for damages from 8 November 2014, and a €20,000 interim lump-sum award (reduced from the €50,000 requested). 

However, the Court refused Rematec’s request to publish the decision at the defendant’s expense. Under Art. 80 UPCA, a publication order requires a demonstrated legitimate interest, which was not established.  

Overall, the decision underscores the CoA’s willingness to exercise its Art. 75 UPCA power to finally determine cases where the LD revoked a patent without addressing infringement and grant the full range of remedies even where infringement relates to particular embodiments. Parties before the Court, therefore, should be mindful that aspects of a case not substantively considered at first instance can be decided at the appeal stage by the UPC without any further judicial recourse. 
 

New episodes: You, Me and the UPC: Case by case

Episode 33: Paris Local Division Orders Henkel to Disclose Technical Data Sheets in Bostik Infringement Action

Episode 34: Court of Appeal upholds revoking of Saisie Order and Clarifies Limits on Amended Requests Under r. 222.2 RoP