Irides: Weekly global patent litigation update

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

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

India

High Court orders substantial pro tem security in Standard Essential Patent dispute against Xiaomi. 

On 30 April 2026, the Delhi High Court ordered Xiaomi to pay a USD 28.7 million pro tem security deposit in ongoing proceedings concerning a portfolio of Standard Essential Patents (SEPs) acquired by Malikie Innovations from BlackBerry.

The Court found that the conditions for obtaining pro tem security were satisfied; namely, a prima facie case in respect of the validity, essentiality and infringement of the patents in suit had been established. The Court accepted that the defendants’ financial position in India was precarious and that pro tem security was necessary to ensure that any final damages award would not be rendered illusory.

Xiaomi argued that, because it had not been granted access to third-party licence agreements, the Court could not determine the amount of pro tem security. However, the Court held that third-party licence agreements were not required, and an implementer has no right to seek production of such licences at the stage of determining security.

Instead, according to the decision, the quantum should be based on the offer made by the SEP holder rather than the implementer’s counteroffer. In this case, this resulted in an amount of USD 28.7 million, calculated as 19.12% of Xiaomi’s Indian market share, to be deposited or secured by an unconditional bank guarantee within six weeks. The Court emphasised that the order did not amount to a determination of FRAND rates or final liability, and that a detailed examination of the merits would follow in due course. 
 

UPC

Düsseldorf Local Division rejects expert bias challenge and upholds ex parte inspection regime.
[Topsoe v SYPOX UPC_CFI_1696/2025]

In an Order dated 4 May 2026, the Düsseldorf Local Division (LD) dismissed challenges to both the impartiality of the Court appointed experts and to the underlying ex parte inspection and evidence preservation order concerning Topsoe A/S’s patent EP 3 802 413 relating to a plant for producing hydrogen.

The Court held that neither the alleged overreach during the inspections nor the scope and depth of the experts’ technical analysis gave rise to a justified concern of bias when assessed from the perspective of a knowledgeable and reasonable observer. Doubts as to impartiality or independence are justified if a knowledgeable and reasonable observer concludes that there is a likelihood that the expert’s decision will be influenced by factors other than their duties to the Court. 

The content of the experts' opinion as such is not sufficient to raise doubts as to the expert’s impartiality. Even a flawed report or a lack of expertise does not make the expert's appear biased. Rather, there must be additional circumstances that suggest an unobjective attitude. 

The respondents (SYPOX GmbH and Josef Kerner Energiewirtschafts-GmbH) were highly critical of the experts’ approach, including arguing that the experts had demonstrated an impermissible tendency to incriminate and an arbitrary approach to inspection, in particular by inspecting installations said to fall outside the wording of the operative part of the order and by securing large volumes of data disproportionately. The respondents also relied on the fact the experts attempted access to the private smartphone of the managing director of the first respondent notwithstanding the fact the director did not have a company phone.

The Court rejected those arguments, noting that experts enforcing inspection measures must often take real time decisions and that disagreements as to the correct interpretation or application of an order, even if they later prove to involve errors of judgement, are not sufficient without more to undermine neutrality or independence. The Court rejected the argument of an unjustified data harvest, acknowledging the experts’ point that an individual examination of all files on site had been practically impossible. Since the classification of files often depends not only on the file name but also on the storage location within the folder structure, a backup preserving the structure was carried out, with the evaluation of its contents taking place at a later stage.

On the parallel review application under r. 197.3 RoP, the Court confirmed that the lawfulness of an ex parte inspection and preservation of evidence order must be assessed as at the date it was made. Against that background, it held that the asserted dual use capability of the inspected installations and the subsequent filing of a nullity action did not undermine the original order.

While the Court maintained a previously imposed requirement for security in the amount of EUR 500,000 in relation to any future opening of the reactor, on the basis that such an intervention carried a risk of irreversible damage, it rejected broader requests for additional security (of 2,000,000) or the appointment of a technical judge.

It also confirmed that the costs incurred by the experts in responding to the bias challenge form part of the inspection costs payable by the applicant. The order underscores the high threshold for successfully challenging experts' impartiality before the UPC and the Court’s reluctance to interfere with ex parte inspection measures on review absent clear and objective indications of error or partiality. 
 

UPC

Court of Appeal clarifies urgency and waiver of invalidity defences in provisional measures proceedings. [Merz v Viatris UPC_CoA_917/2025]

The Court of Appeal (CoA) has overturned the Paris LD’s refusal of provisional measures and granted a Preliminary Injunction (PI) preventing Viatris Santé from marketing its fampridine generic (which is for the improvement of walking speed in adult patients with MS) in France until expiry of Merz’s SPC in July 2026. The Court found that Merz had not acted with unreasonable delay and that the balance of interests favoured enforcement, notwithstanding the relatively short remaining duration of the SPC.

On urgency, in October 2024, during the preparatory activities by Viatris necessary for its entry to the market, the health authority (CEPS) informed Viatris of the existence of the patent. Viatris responded the same month, stating that their product would be launched in France by April 2025. Under the national regime, CEPS is required to then inform the patentee of this information. Although there was no evidence of this at first instance, the LD assumed this to have occurred. The product was included in the official pricing and reimbursement list one month later. Merz sent Viatris a warning letter on 18 June 2025. Viatris’ launch was published on 30 June and on 2 July, it informed Merz by reply letter that it had launched. Merz brought the PI action on 31 July 2025. The LD held that Merz should have policed its rights by carrying out due diligence through which it would have become aware of the imminent infringement since at least January 2025.

The CoA disagreed, applying the principle that imminent infringement arises where the circumstances suggest that the infringement has not yet occurred, but the potential infringer has already set the stage for it to occur. It held that the first instance decision rested on unsupported assumptions regarding the transmission of information under the French pricing and reimbursement regime. Based on new evidence filed during the appeal proceedings, the CoA was not satisfied that notifications from CEPS concerning Viatris’s pricing application and launch intentions had necessarily reached the relevant interested parties.

Nor did publication of the generic’s price and reimbursement listing in November 2024, assessed in its regulatory context, provide sufficient certainty of an imminent infringement. The Court considered that neither the wording of the LEEM–CEPS framework agreement nor administrative practice established an obligation on a generic manufacturer to launch within six months of listing, noting that in practice launches have occurred as much as 2.5 years after price publication. Therefore Merz did not have sufficient knowledge of imminent or actual infringement based on this publication. As to the actual date on which Merz did gain knowledge, it was either 30 June or 2 July. The CoA held that Merz had acted sufficiently swiftly even if the earlier date applied. 

In weighing the balance of interests for the purpose of reassessing the PI criteria, the Court considered Viatris’s arguments relating to patient interests, alleged supply shortages, packaging issues and costs to the French public healthcare system. While acknowledging that patient interests can be relevant in pharmaceutical cases, it found no credible evidence that an injunction would jeopardise continuity of supply and accepted Merz’s evidence that it could meet market demand. The Court also placed weight on the need to preserve the status quo in a market that had moved from monopoly to direct competition, noting the risk of lasting price erosion and loss of market share that would not be fully compensated by damages.
 

UPC

Helsinki Local Division rejects infringement by equivalence in billboard detection dispute.
[AIM v TGI UPC_CFI_214/2023, UPC_CFI_403/2025]

On 29 April 2026, the Helsinki LD dismissed AIM Sport Development AG’s infringement action and TGI’s counterclaim for revocation in proceedings concerning EP 3 295 663, which protects a method for digitally overlaying one image onto another. The LD held that the patent was valid but not infringed by TGI’s digital overlay system (SVB), whether literally or by equivalence, and accordingly rejected all relief sought by each party.

On validity, the LD upheld the patent against attacks based on added matter, novelty and inventive step. It emphasised that the claimed invention lay in detecting occluding objects based on an intrinsic image property of those objects (e.g. pixel brightness) rather than in identifying the billboard itself by reference to a light or signal signature. On that basis, the LD concluded that the subject matter neither extended beyond the application as filed nor was disclosed or rendered obvious by the prior art, which instead focused on identifying the billboard rather than the occlusion.

On infringement, the LD found that TGI’s SVB system detects the billboard using infrared signatures and threshold values that are characteristics of the billboard itself, rather than image properties of occluding objects within the meaning of method claim 12. That feature was central to the claimed invention, and its absence meant that the SVB System did not infringe on a literal construction. 

The LD also rejected infringement by equivalence. Applying the criteria set out by The Hague LD in UPC_CFI_239/2023, it held there was no technical equivalence between the claimed solution and the SVB system. The SVB system detects billboard pixels using infrared signatures not an intrinsic image property of an occluding object, and therefore it operates in a different technical context from the patent. To extend the protection of the patent by equivalence in this way would go beyond the limits of the claims as drafted. Since the equivalence criteria are cumulative, the LD did not consider the remainder.

Given the finding of non-infringement by the SVB system, all requests relating to TGI’s new AI-based technology AIR System, which was trained on the use of the SVB system, were also rejected. 

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

Episode 53: The Milan Central Division clarifies holistic novelty assessment and the limits of auxiliary requests.

Episode 54: Court of Appeal reaffirms approach to Security for Costs.