Irides: Weekly global patent litigation update

This edition features updates from: Germany, USA, the Unified Patent Court (UPC) and China.

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

Germany

Samsung fails in FRAND licence determination against ZTE in the Frankfurt Regional Court

On 25 February 2026, the Frankfurt Regional Court dismissed an action brought by Samsung seeking to compel ZTE to grant a FRAND licence for ZTE's Standard Essential Patents (SEPs) covering mobile communications standards including 3G, 4G, and 5G. 

Both parties own SEPs covering mobile communications standards and are therefore each bound by FRAND obligations. Samsung brought an action under German competition law and Art. 102 TFEU seeking to compel ZTE to accept a specific FRAND licence agreement (or one of two alternative versions).

On admissibility, the Court confirmed that a prospective licensee may bring an action to compel the conclusion of a FRAND licence agreement, not merely an action requiring the SEP holder to submit a FRAND-compliant offer. It further confirmed that such an action may in appropriate circumstances seek a worldwide licence before a German Court. The Court also rejected ZTE's argument that in the light of Samsung's parallel proceedings before Courts in England, China, California and the UPC its action constituted an abuse of process. Whilst acknowledging that Samsung was pursuing its claim across multiple forums with great determination, the Court found that this was justified by Samsung's fundamentally disadvantaged position as a licence seeker dependent on ZTE's SEPs, obtaining a FRAND licence was the legitimate underlying objective of all proceedings, no irrelevant motive could be identified, and the proceedings were not aimed at increasing ZTE's costs.

On the merits, however, the Court dismissed the claim. While it confirmed that in the light of its SEP portfolio ZTE held a dominant market position it ultimately concluded that Samsung’s offers did not justify an order compelling ZTE to conclude a licence agreement as sought by the Korean manufacturer. For such a claim to succeed, the Court held that the licensee’s offer must lie at the upper end of the FRAND range. Otherwise, the SEP holder could still respond with a higher (but still FRAND-compliant) counteroffer, meaning the conditions for compelling acceptance of the licensee’s terms are not satisfied. Even applying assumptions favourable to Samsung, the Court found that Samsung’s proposed royalties – including under its alternative claims – fell below that threshold. 

This finding reflects, perhaps, the fundamental disagreement between the UK and German Courts as to how to assess the FRAND obligation with the former looking to settle the FRAND level that parties would agree in the real world as a result of the contractual obligation to offer a FRAND licence, whereas the latter see FRAND only applying where the patentee is seeking so much that it has become an anti-trust abuse.

On methodology, the Court reaffirmed the primacy of the comparable licence approach but found that the prior licence between the parties could not be used as a benchmark due to material differences in scope and duration. In the absence of suitable comparables, the Court applied a top-down approach, while acknowledging this is generally less preferable and on that basis concluded that Samsung’s offers did not reach the upper end of the FRAND range. 
 

USA

PTAB Reaffirms Broad Institute CRISPR Priority. 

The Patent Trial and Appeal Board (PTAB) has found in favour of The Broad Institute, Massachusetts Institute of Technology, and the President and Fellows of Harvard College (Broad) on priority for a second time in the long-running CRISPR interference, concluding that the Regents of the University of California, University of Vienna, and Emmanuelle Charpentier (the CVC) failed to prove that the CVC inventors had conceived of the invention before the Broad Institute reduced it to practice in October 2012. The dispute concerns a CRISPR-Cas9 gene-editing system that uses a single guide RNA together with the Cas9 protein to cleave or edit DNA in eukaryotic cells to alter gene expression or modulate transcription of a targeted gene. CVC claimed that it was entitled to priority on the basis that it had conceived of the invention before Broad. 

The PTAB had previously entered judgment against CVC in 2022 but the Court of Appeals for the Federal Circuit (FC) remanded the PTAB’s determination of priority for reconsideration, finding that the PTAB had applied the wrong standard for "conception". In particular, the FC found that the PTAB had failed to consider (i) whether a person of ordinary skill in the art could have reduced the invention to practice, (ii) evidence of purported experimental successes by others and (iii) whether CVC’s scientists described routine methods or skills in their disclosures at the asserted conception dates or applied such routine methods or skill in subsequent experiments. 

On remand, the PTAB considered all three points but remained unpersuaded that the CVC inventors had been first to conceive of the inventions. First, whilst CVC's witnesses testified that applying the CRISPR-Cas9 system in eukaryotic cells was straightforward, requiring only routine genome-editing techniques after the CVC inventors disclosed results of in vitro CRISPR experiments, the PTAB found that this was highly unpredictable and complex at the relevant time. A person of ordinary skill (defined as a PhD-level researcher without the specific expertise of someone in a laboratory with particular CRISPR-Cas9 capabilities) would have required significant further instruction or experimentation to achieve success in eukaryotic cells.

Second, the PTAB was not persuaded by CVC’s reliance on rapid subsequent success by other laboratories. Whilst multiple groups achieved eukaryotic CRISPR editing within months of the CVC inventors’ announcement of in vitro CRISPR experiments, the evidence did not establish that this was achieved without significant experimentation or that it reflected what a person of ordinary skill in the art could have done. The PTAB noted that many of these groups had particular expertise, resources, or collaborative links, and in some cases had to make significant technical modifications to CVC’s in vitro CRISPR system to achieve results in eukaryotic cells. The evidence also indicated failures by other labs, who did not report any successes until after the Broad’s disclosure of the eukaryotic CRISPR-Cas9 system.

Third, the evidence (including emails between the inventors) showed the invention was not sufficiently clearly defined in the CVC inventors' minds at their asserted conception dates and the inventors were still identifying significant aspects of the system, including the design of the single guide RNA, even after Broad had reduced the invention to practice. 

The PTAB therefore concluded that the preponderance of evidence showed that the CVC inventors did not conceive of the full invention before the Broad inventors’ actual reduction to practice and denied CVC’s motion for priority.
 

UPC

Court of Appeal Upholds Preliminary Injunction against Chinese CGM Manufacturer.
[UPC_CoA_899/2025]

On 30 March 2026, the Court of Appeal (CoA) dismissed an appeal from the Chinese manufacturer Sinocare, and its Italian distribution partner Menarini Diagnostics, against the Preliminary Injunction (PI) granted by The Hague Local Division (LD) on 17 October 2025, which prohibited the sale of their GlucoMen iCan products in the UPC territory. Abbott alleged its unitary patent EP 4 344 633 for a continuous glucose monitoring sensor assembly was infringed by the GlucoMen iCan products which were manufactured in China by Sinocare, and marketed and distributed in Europe by Menarini. Several points of significance emerge from the decision but the key takeaway is on jurisdiction.

The CoA confirmed that, despite all manufacturing steps taking place outside the EU, the UPC did have jurisdiction over China-based Sinocare because the acts of manufacturing, preparing and selling products intended for the European market are sufficient to establish a likelihood of damage in the UPC territory. Specifically, Sinocare (i) was identified as the manufacturer on packaging and the EUDAMED database (which is how regulated medical devices are placed on the European market); (ii) obtained CE certification and affixed CE marking to the products; (iii) co-branded the products with Menarini; and (iv) was closely involved in promoting and marketing the products in Europe. This provided sufficient basis for jurisdiction under Art. 71b(2) and 7(2) Brussels I Recast (BR). Since Menarini did not contest jurisdiction before LD, the CoA held it had foregone the right to challenge jurisdiction on appeal under Art. 26(1) BR and r.19.7 RoP.

The CoA’s ruling on jurisdiction will be of particular interest to companies operating global supply chains, since it shows UPC jurisdiction cannot be avoided simply because manufacturing takes place outside the UPC territory if the commercial reality is that the products are intended for the EU market.

On claim construction, the CoA confirmed what is quickly becoming standard practice in the UPC, that whilst the claims are the decisive basis for determining the scope of protection, the description and drawings must always be used as explanatory aids and not only to “resolve ambiguities” 

On the urgency requirement for a PI, the CoA held that the clock starts not from when the patentee first becomes aware of the potential infringement, but from when it has, or reasonably should be able to obtain, the evidence necessary to file a PI. In this case, Abbott could only obtain physical samples four months after it learned of the GlucoMen iCan products and proceeded to file its PI several months after samples were obtained (although within one month of patent grant). Despite the GlucoMen iCan products having been available on the market for several months by the time the PI was filed, therefore, the CoA found this to be a reasonable period to have acted within. 
 

UPC 

Asserting a Non-Granted Claim in Preliminary Injunction Proceedings is Not Automatically Precluded. 
[UPC_CoA_898/2025]

On 27 March 2026, the CoA dismissed an appeal against the refusal of interim measures but provided important clarification on procedural issues relevant to PI proceedings under the UPC framework.

In Onward v Niche (UPC_CoA_898/2025) the CoA overturned the Munich Local Division’s (LD) decision that the assertion of non-granted or unregistered claims (i.e. proposed claim amendments to a granted patent) should be rejected in interim proceedings. R. 211.2 RoP requires the Court to be satisfied as to the validity of the ‘patent in question’, which is not confined to the claims as granted. The CoA considered that it could not be correct that a central amendment at the EPO is required before any patent claim can be asserted in interim proceedings, as this would defeat the need for urgency. Whether such an amended claim set may be relied upon must be assessed on a case-by-case basis, taking into account the summary nature of interim relief proceedings and the procedural position of the defendant. The number of amended claim sets relied on may also be a relevant consideration.

The Court further held that the CoA has discretion to allow the admission of new (alternative) claims on appeal even if they have not been relied on at first instance, pursuant to r. 222.2 RoP.
 

UPC 

Private Transcripts of Oral Hearings Permissible Under r. 115 RoP. [UPC_CoA_12/2026] 

On 30 March 2026, the CoA overturned a decision of the Mannheim Local Division (LD) that had refused Amazon permission to produce a private transcript of an oral hearing in proceedings UPC_CFI_936/2025 between Amazon and InterDigital.

Following an oral hearing on 14 November 2025, Amazon applied under r. 115 RoP for access to the audio recording and permission to engage a professional stenographer to assist in producing a transcript. The judge-rapporteur granted access to the recording but refused the transcription request, holding that r. 115 RoP did not permit private transcripts and expressing concerns about accuracy, misuse in foreign proceedings, and the risk to open judicial exchange. A full panel of the LD upheld that decision on review. 

The CoA disagreed, holding that r. 115 RoP does not prohibit the preparation of a private transcript. The Court was further persuaded by the Drafting Committee's (DC) commentary following the 16th draft of the RoP which expressly noted that parties are free to take notes or arrange for a private transcript to be made. The Court also rejected the suggestion that by analogy, Art. 85 of the CJEU RoP should be seen as indicating that a restrictive approach should be taken by the UPC, noting that the DC adopted only limited aspects of the CJEU provision. 

The Court confirmed that the transcript need not be prepared by the party or representative personally: support staff such as a stenographer may assist, provided they work in the presence and under the supervision of the entitled person, and are bound by any applicable confidentiality order. The audio recording remains the authoritative record; if a transcript's accuracy is disputed, the recording prevails.

As to use, private transcripts may be deployed in UPC proceedings and, in certain conditions, in related parallel proceedings in other jurisdictions, provided they are clearly marked as private, non-authoritative documents and include an express statement that judicial observations during the hearing are provisional. 
 

UPC

Paris Local Division Adopts a Flexible Interpretation of the "Anchor Defendant" Rule Under Art. 33(1)(b) UPCA.
[UPC_CFI_1963/2025]

Art. 33(1)(b) UPCA provides that “An action may be brought against multiple defendants only where the defendants have a commercial relationship and where the action relates to the same alleged infringement”.

In Valéo v Bosch, an infringement action before the Paris Local Division (LD), the Bosch defendants challenged the judge-rapporteur’s February decision (previously reported here) to accept jurisdiction in relation to all defendants. The judge-rapporteur had refused permission to appeal but Bosch filed an application for review within 15 days in accordance with r. 333.2 RoP, arguing that: (i) the required “commercial relationship” must exist individually between the so-called anchor defendant and each other defendant, and (ii) the requirement that the action concern “the same alleged infringement” necessitates identity of accused products or processes across all defendants. The review application was ruled admissible by the LD but dismissed on the merits.

The LD’s decision sets out a broad interpretation of Art. 33(1)(b), with the LD concluding that the provision is satisfied “where all the defendants belong to the same group of companies, and where the respective activities of each of the defendants are related and pursue the same objective, namely the research and development, manufacture, sale and distribution of the same products or the same range of products”, with no requirement that the products alleged to infringe are identical across all the defendants or that each defendant has a “special commercial relationship" with the anchor defendant. The LD noted that this flexible interpretation avoids “a proliferation of parallel proceedings and the risk of conflicting decisions”. However, recognising the legal significance of the issues raised concerning the interpretation of Art. 33(1)(b), it granted leave to appeal.
 

UPC 

Court of Appeal Hears Fujifilm v Kodak Appeal.

On 27 and 30 March 2026, the CoA heard appeals of two Fujifilm v Kodak cases, one of which was previously reported here as the first ever UK injunction granted by the UPC based on long-arm jurisdiction. The other case failed at first instance for invalidity, but both were under appeal.

While the CoA's decision on the appeals is still awaited, the hearing itself will be of interest to those following the developing case law as to the UPC’s approach to jurisdictional issues.

Regarding jurisdiction, the Court set out the issues to be addressed as a) whether the UPC has jurisdiction for infringement of the UK patents and b) if so, how any such jurisdiction could or should be exercised.

In its non-binding Preliminary Opinion (PO) for the hearing (and emphasising that this was just an opinion), the Court considered that the UPC did have jurisdiction over the alleged UK infringement the case, on the basis of Art. 4 BR, as all the accused Kodak defendants ware German-domiciled. The PO also outlined that, when the UPC has long-arm jurisdiction under Art. 4 BR, it seems it must exercise it, but there is the secondary question to be answered which is how that long-arm jurisdiction should be exercised. For example, the Court may decline or stay aspects of the case in light of other considerations such as comity or parallel proceedings, such as pending revocation actions.

However, the PO also emphasised that when relying on long-arm jurisdiction, the claimant has on obligation to explain he relevant legal basis for the claimed jurisdiction, and the relevant facts and evidence in support of it. This must be presented at the outset so that the defendant(s) know which legal and factual basis they must respond to. Here, the preliminary view was that Fujifilm has not provided sufficient evidence that the German-domiciled Kodak defendants were liable for UK infringement under the act of importing, or under joint tortfeasance. Both of these issues were to be assessed under the relevant UK national law and the Court at the hearing sought clarity on the legal tests to be applied and the alleged evidence in support of this.

The CoA’s eventual decision will therefore be important not only for the scope of longarm jurisdiction, but also for what claimants must plead and evidence at the outset when relying on it. We will of course report on the decision in due course.
 

China

Supreme People's Court releases sixth batch of seed industry IP typical cases.

On 26 March 2026, China's Supreme People's Court released its sixth batch of typical cases on IP protection in the seed industry. The ten cases, covering civil, administrative, and criminal proceedings, serve as "soft law" to guide lower courts, harmonise judgments nationwide, and signal judicial policy priorities. The batch addresses several recurring issues in seed industry IP disputes including the conditions for expanding molecular marker testing sites for variety identification, the application of punitive damages for intentional infringement (such as the sale of seeds in unlabelled/counterfeit packaging), and the potential liability of supply chain actors (including warehouse operators and importers) who fail to exercise due diligence. The cases also confirm that a civil settlement with a rights holder does not preclude separate administrative penalties where broader public interests are engaged. 

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