Irides: Weekly global patent litigation update

This edition features updates from: France, Germany, the Unified Patent Court (UPC) and the United Kingdom (UK).

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

France

France introduces new sanction for delays to generic entry under the 2026 Social Security Financing Law.

The 2026 French Social Security Financing Law (LFSS 2026), adopted at the end of last year, introduces a new tax on companies marketing “pharmaceutical specialities” if they are found to unjustifiably delay generic entry beyond a year after the expiry of the initial patent or SPC protecting the medicine. Practices that may be deemed to constitute “unjustifiable delay” include the filing of secondary patents, for example to dosage forms or manufacturing processes, that do not improve the “medical service provided” and the filing of “manifestly dilatory” legal or administrative actions, which are aimed at preventing or delaying the marketing authorisation of an equivalent generic product. The rate of the tax is set at 3% of the pre-tax turnover generated in France from the sales of the relevant product during the financial year in which the delay is observed, increasing to 5% in the event of a repeat offence within five years.
 

Germany

HMD seeks constitutional review after Federal Court of Justice declines FRAND referral.

On 12 March 2026, HMD filed a constitutional complaint with the Federal Constitutional Court of Germany in connection with its ongoing litigation with VoiceAge. This complaint was filed as a response to the German Federal Court of Justice’s (the FCJ) earlier judgment, handed down on 27 January 2026 (as reported here), which upheld VoiceAge’s patent infringement claim and rejected HMD’s FRAND defence. The focus of HMD’s complaint is the fact that the FCJ declined to make a referral to the CJEU regarding the correct interpretation of SEP holders’ FRAND licensing obligations under Huawei v ZTE, despite the European Commission having filed an amicus curiae brief urging the FCJ to undertake such a step. HMD’s complaint argues that the FCJ’s failure to refer to the CJEU denies judicial clarification by the court competent to interpret EU law, thereby violating HMD’s constitutional right to a lawful judge.
 

UPC

Court of Appeal overturns Paris Local Division’s extension of UPC jurisdiction for foreign infringement allegations.
[UPC_CoA_922/2025]

On 13 March 2026, the Court of Appeal (CoA) has set aside the Paris Local Division’s (LD’s) decision (dated 27 November 2025) that had dismissed the preliminary objections and accepted jurisdiction over alleged infringements occurring in several non-UPC states between Keeex and several US and Irish based defendants. While none of the defendants contested the UPC’s jurisdiction over acts said to occur within UPC contracting member states, they challenged the wider assertions of jurisdiction over alleged harm outside the UPC territory, namely in Switzerland, Spain, the UK, Ireland, Norway and Poland.

Keeex had invited the Court to treat the alleged damage as global and therefore to assume jurisdiction over the non-UPC designations. The Court found that this was insufficient to meet the r. 13 requirement to set out a clear factual and legal basis for extraterritorial jurisdiction. Because Keeex relied on Art. 7(2) Brussels I Recast (BR) as the primary basis for jurisdiction, the Court held that the claim was necessarily confined to alleged damage within the UPC territory, reflecting the established CJEU case law (C-441/13 Hejduk; C-68/93 Shevill).

The Court also considered that the Paris LD had misapplied the more recent CJEU judgment in C-339/22 BSH), which concerned Art. 4 and therefore cannot be used to extend the reach of a Court that is seised under Art. 7(2). The Court reaffirmed that under CJEU case law, jurisdiction is founded on the place where damage occurs and extends only to harm suffered within the territory of the seised court. As a result, Art. 7(2) cannot provide a gateway for the UPC to adjudicate on alleged infringement in countries outside the UPC system. The Court did not comment on whether Art. 71b(3) might, in principle, permit such an extension, but held that Keeex had not pleaded or substantiated the necessary conditions relating to the existence and value of defendants’ assets in UPC states.

The Court further held that neither Art. 6 BR nor Art. 14 of the French Civil Code could apply before the UPC, noting that the UPC is not a national Court and applies only Brussels I as modified by Regulation 542/2014.

As a result, the Court concluded that the Paris LD’s decision upholding jurisdiction over alleged infringements occurring in non-UPC states must be set aside. Adobe, one of the other defendants, had requested a reference to the CJEU if the Court were inclined to maintain the LD’s reasoning. The Court did not see a reference as necessary. 
 

UPC

Court of Appeal supports Local Division Case Management Approach to FRAND Issues in Ongoing SEP Litigation.
[UPC_CoA_904/2025, UPC_CoA_905/2025] 

On 16 March 2026, the CoA handed down its decision in Sun Patent Trust v Vivo. This decision arises against the backdrop of the parties ongoing litigation involving FRAND at the Paris LD. There, Sun Patent Trust (SPT) has sought an injunction based on infringement of its 4G SEPs, if Vivo does not enter a licence on terms determined to be FRAND by the Court.

Vivo filed a Preliminary Objection (PO) contesting the UPC and LD’s competence to determine the FRAND terms of a licence. However, the LD dismissed Vivo’s objection holding that it was appropriate for the question of whether the FRAND determination was admissible as regards Art. 32.1 UPCA to be postponed to the main hearing. This was because the question was incidental to the main issue of the proceedings: which was to determine whether Vivo infringed SPT’s SEPs. Vivo appealed the Paris LD’s decision on two grounds: 

1. Under r. 20.1 and r. 20.2 RoP only the Judge-Rapporteur (JR) may defer a PO to the main proceedings.

2. The request for the Court to determine the FRAND terms of SPT’s licence was not incidental to the patent infringement claim but an independent claim in its own right – for which the UPC lacks jurisdiction to determine.

Regarding (1), the CoA found that under r. 20.2 RoP, a decision to deal with a PO in the main hearings may be taken by either the JR or by the panel if the JR has decided to refer the matter to the panel. R. 102.1 RoP provides the JR discretion to do this during the interim procedure and the CoA confirmed that the JR has equal discretion during the written procedure. Additionally, the JR has responsibility over Case Management (CM) and as part of their discretionary powers can refer a proposed order to the panel. Under the RoP CM includes deciding the order and the manner in which issues are heard together. Therefore, the decision to defer the PO to the main hearing was a CM decision that the JR was entitled, under the RoP, to refer to the panel. The CoA confirmed that the Court of First Instance (CFI) has a margin of discretion to decide whether to hear the PO as soon as practicable or to deal with it in the main proceedings. As such, the review by the CoA is limited. Instead, the question the CoA must answer is whether the CFI overstepped the boundaries of its discretion and could not reasonably have come to its decision. In the present case, the CoA held that the LD had not exceeded its margin of discretion.

As regards the characterisation of the claim, the CoA held that the LD rightly found that SPT’s claim was a claim for patent infringement and that the request for a determination of FRAND terms was not an independent claim, not least because it would fall away if Vivo is found not to infringe SPT’s patents in the main proceedings.  

The CoA therefore dismissed Vivo’s appeal on both grounds.
 

UPC

Milan Central Division conclude proceedings following EPO revocation. 
[UPC_CFI_722/2025]

The Milan Central Division has dismissed ongoing revocation proceedings between Neurocrine Biosciences and Spruce Biosciences as devoid of purpose under r. 360 RoP. This was because the patent in suit had been revoked by the EPO Opposition Division and the patentee, Spruce Biosciences, had not appealed the decision. Neurocrine’s request that the revocation action should only be disposed of on the condition that Spruce gave a non-confidential undertaking not to enforce any divisional patents against Neurocrine was rejected, the Court holding that this request fell outside the scope of r. 360 RoP. The Court also observed that the revocation action before it was solely directed to the (now revoked) patent and not to any other claim scope. Accordingly, the mere fact that the patent has been revoked does not mean that every divisional will suffer the same fate.
 

UK

Patents Court rejects essential derivation claim over Tang Gold mandarins. 

On 12 March 2026, the Patents Court dismissed Nador Cott’s claim that Asda infringed its UK Plant Breeders’ Right in the ‘Nadorcott’ mandarin by selling fruit from a variety known as ‘Tang Gold’. The Court ruled that, although Tang Gold originated via irradiating the Nadorcott variety, it was not an ‘essentially derived variety’ under s.7 of the Plant Varieties Act 1997 because it does not retain essential characteristics of Nadorcott, specifically seediness and pollen viability, both of which are traits considered highly relevant to growers. As Tang Gold was not deemed a dependent variety, no infringement arose. Nevertheless, the Court went on to address the secondary issue of ‘reasonable opportunity’, finding that if the Judge was wrong and Tang Gold had been an essentially derived variety, Nador Cott would have been entitled to an injunction against import of Tang Gold into the UK because it had not had a reasonable opportunity to enforce its rights against foreign growers in South Africa and Spain. 
 

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