Irides: Weekly global patent litigation update

This edition features updates from: The United Kingdom (UK), India, Israel, China, Ecuador and the Unified Patent Court (UPC).

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

UK

Court of Appeal finds “cross-licensing” term of Nokia’s proposal to be not RAND ahead of arbitration in Acer v Nokia and Asus v Nokia. 
[2026] EWCA Civ 604]

As we reported last week [see here], the Court of Appeal (CoA) granted a case management stay in the Acer/ASUS v Nokia matter so that the parties could, through the process of arbitration, reach a resolution of their dispute over the licencing of Nokia’s SEPs on RAND terms. This week the CoA handed down a judgment to explain issues that arose with the order to be made in consequence of last week’s judgment.

Such “consequential” judgments are relatively rare, but this was an important further intervention from the CoA to explain why Acer/ASUS would not be required to agree a term “which requires either party to stay, withdraw or abandon … any litigation concerning any patents it (or its group) owns, controls or manages if the other party contends that such patents should be included within the scope of a (F)RAND (cross-)licence”. This term had been identified as an issue in last week’s judgment but, as Arnold LJ noted: “Since Nokia’s case did not depend on the inclusion of the disputed term, it was disregarded for the purposes of determining the appeal with respect to the case management stay”. 

Nokia did press for the disputed term to be included in the consequential order – something Acer/ASUS would not agree to, so it was necessary for the CoA to consider it. Having done so, the Court has found that it is not RAND. The Court held that it “follows from Nokia’s own argument which the Court accepted in paragraphs 85-88 of the main judgment that a SEP owner is entitled to choose between arbitration and court proceedings as a mechanism for determining (F)RAND terms”. Nokia could not, therefore, compel Acer and ASUS to licence their own SEPs (by way of cross-licence) as part of the arbitration process meant to provide RAND terms for Nokia’s SEPs. Arnold LJ agreed with Acer/ASUS that this meant that the “arbitration picks up where the English proceedings leave off, rather than having to start all over again from scratch”.
 

India

Delhi High Court overturns Standard Essential Patent infringement and FRAND damages in Philips DVD patent dispute.

On 18 May 2026, the Delhi High Court allowed the Bansals’ appeal and overturned a first instance judgment dated 12 July 2018 in proceedings brought by Philips concerning Indian Patent No. 184753, which relates to a decoding device used in DVD players. The first instance judgment had found the patent to be standard essential and infringed, and awarded damages by way of royalties at FRAND rates (said to be US$ 3.175 up to 27 May 2010 and US$ 1.90 thereafter until the patent’s expiry), together with punitive damages. The 18 May decision entirely overturns this.

On essentiality, the DVD Forum was the standard-setting organisation, but the Court held that Philips had not proven that the patent was a Standard Essential Patent (SEP). Philips relied on essentiality certificates for corresponding US and EP patents said to be essential to the DVD standards, but the court found those certificates unreliable because they did not explain the mapping exercise and, crucially, no author from the certifying firms was called as a witness. There were also no affidavits from those firms supporting the certificates’ correctness. The Court also noted that no claim charts mapping the claims of the foreign patents or the patent in suit onto the technical features of the DVD Forum standards were produced, and it concluded that Philips had therefore failed to prove the patent was standard essential.

Infringement was not established either. The Court held that Philips had not proved infringement (directly or indirectly) because no product-to-claim mapping exercise was undertaken. Philips relied on an affidavit from someone who did not testify in Court.

The Court also held that, in any event, Philips could not enforce the patent against the Bansals because Philips’ rights were exhausted under s. 107A(b) PA. The Bansals had shown that they bought PCBs with MediaTek chips from authorised partners of MediaTek. The Court rejected the first instance reasoning that exhaustion depended on whether MediaTek (or downstream sellers) were shown to be licensees of Philips, pointing out that, after the 2003 amendment to s. 107A(b), it is not required that sellers be a person authorised by the patentee, only a person duly authorised under the law to produce and sell or distribute the product. It was not suggested that the relevant sellers were not duly authorised under the law.

A significant strand of the decision concerns the characterisation of the patent and the consequences for the royalty base. The Court treated the subject matter of the patent in suit as a decoding device contained within a DVD player, and noted that the evidence confirmed that the invention resided in a chip or PCB. It emphasised that protection is confined to what is claimed (referring to s. 10(4)(c) of the Patents Act 1970 (PA)), and held that Philips could not premise royalty or damages on the entire DVD player where the patent claimed only the component-level decoding device. The Court therefore rejected the approach taken at first instance of working out FRAND royalty and damages on a per DVD player basis, observing that this would, in effect, award Philips royalty for elements in respect of which it held no patent. 

Finally, on FRAND, the Court stressed that an SEP holder seeking damages must demonstrate it is willing to license at FRAND rates and that a Court cannot determine whether offered rates are FRAND without an evidential basis, typically including comparable licence agreements. It criticised the absence of any third-party licence agreements on the record despite witness evidence from Philips that such agreements existed, and held that the first instance FRAND finding lacked supporting material.

In light of these conclusions, the punitive damages award was also set aside, and the appeals were allowed. 
 

Israel

District Court finds that foreign Patent Term Extension revocation, even if retroactive, invalidates Israeli Patent Term Extension.
[Civil Appeal No. 60673 01-25]

On 11 May 2026, the Jerusalem District Court (sitting as the Civil Appeals Court) (JDC) dismissed Bristol-Myers Squibb's (BMS) appeal of the Deputy Registrar of Patents' (DR) decision of 28 November 2024 to revoke the previously granted Israeli Patent Term Extension (PTE) covering BMS' apixaban product. The JDC confirmed that revocation of a reference patent or extension in any recognised country causes an Israeli PTE to lapse, regardless of whether the revocation has retroactive (ab initio) or prospective effect.

BMS had been granted a PTE covering its apixaban product in Israel through to 20 May 2025 as a result of the "two-country rule" set out in s. 64D(7)-(5) PA. This stipulates that to be eligible for a PTE in Israel, the applicant must demonstrate that the patent term has been extended in the United States plus in one of the five “recognised European countries”, namely: Italy, the United Kingdom, Germany, Spain or France and the order extending the term of the reference patent term extensions has not expired.

Unipharm Ltd, Manufacturers’ Association of Israel and Teva Pharmaceutical Industries Ltd applied to the DR to revoke BMS' PTE on the basis of s. 64(j)(3) PA, on the basis that BMS' SPC for apixaban in the UK had been held finally invalid on 31 October 2023. 

In its decision the JDC accepted the DR's finding that The PTE granted in Israel lapsed, notwithstanding there are other recognised European countries where the extension orders remain in force meaning the two country condition was still met. In response to BMS' appeal that s. 64(3) PA was met where the revocation of the patent term extension had prospective effect, the JDC that the Patents Act is clear and definitive when setting out the conditions on which a PTE would lapse in Israel. As such there was no basis to distinguish different types of lapse as BMS sought to do.
 

China

NMPA brings China’s drug test data protection regime into force. 
(No. 47 of 2026)

On 15 May 2026, the National Medical Products Administration of China (NMPA) brought into force the Implementation Measures for the Protection of Drug Test Data, which introduces Regulatory Data Protection (RDP) in China. From this date, applicants for drug registrations may simultaneously submit applications for RDP when filing the drug registration application. 

Under the RDP regime, eligible drugs (including both small-molecule drugs and biological products), have up to six years of RDP, depending on whether the drug and its indications have been approved in China or overseas. First-approved generic drugs are also able to apply for three years of RDP.
 

Ecuador

ARCSA introduces modernised regime for Medical Device Registration.

On 28 April 2026, the National Agency for Regulation, Control and Health Surveillance (ARCSA) adopted Resolution ARCSA‑DE‑2026‑003‑DASP

(Resolution). This replaced the previous framework for the registration, control and surveillance of medical devices. The Resolution is a materially updated technical regulation that is presented as being more closely aligned with international practice for medical devices. 

The Resolution introduces two routes to registration, a general pathway and a simplified pathway, and it refreshes the technical and documentary requirements by reference to device type and risk classification. There is an express emphasis on strengthening assurance of quality, safety and efficacy while facilitating market access for devices already authorised in trusted jurisdictions.

A key development is the simplified registration route, which allows reliance on approvals granted by high‑surveillance authorities that are members of the IMDRF, coupled with a stated evaluation period of 30 working days (not including time to remedy observations). In practical terms, that reliance mechanism is likely to be most relevant for manufacturers who already hold approvals in major jurisdictions and are looking to sequence market entry efficiently. It will also place a premium on ensuring that the dossier used to secure the “trusted” approval can be mapped cleanly onto the Ecuadorian format. This is particularly the case where labelling, local representation, and device‑specific administrative elements often diverge from jurisdiction to jurisdiction.

The Resolution also modernises Ecuador’s device classification approach. In particular, it expressly addresses software and new technologies, and it updates how classification ties into what ARCSA expects to see by way of technical and documentary evidence.

Registrations under the Resolution will be valid for five years and can be renewed for equal periods. 

For imported products, these may be subject to conditioning requirements within Ecuador prior to commercialisation to comply with the Regulation. The exact process will depend on whether solely labelling activities are taking place or whether broader conditioning activities are required. In all cases, these activities must not affect the stability of the product, nor the integrity or sealing of the primary packaging.

Finally, the new medical devices regime tightens post‑market control and surveillance obligations. Whilst the Resolution aims to streamline certain medical devices through reliance on trusted foreign jurisdictions, post‑approval monitoring is reinforced through more explicit surveillance and control expectations once products are on the market. 

The Resolution will enter into force within nine months from its issuance and is therefore expected to be in force as of 28 January 2027. 
 

UPC

The Hague Local Division allows targeted access to samples for infringement testing.
[Avient v Xingi UPC_CFI_ 478/2025 & UPC_CFI_ 585/2026] 

On 11 May 2026, The Hague Local Division (LD) issued its decision on an application for an order to produce documents under r.190 RoP brought by Avient Protective Materials (Avient) in its ongoing proceedings against the Xingi Group (Xingi). The proceedings relate to EP 2 791 402, which protects certain forms of polyethylene yarn and products comprising it, such as bulletproof panels, helmets and vests. 

Avient requested samples of six different types of fabrics made from Xingi’s allegedly infringing yarn to test whether they fell within the claims of the asserted patent, as well as Xingi’s internal testing results on the same. Avient also requested production of a video clip which it alleged was directed to European buyers as purported evidence of infringing acts, but which had been removed from Xingi’s website.

Noting that considerable quantities of material (30 kg per sample) would be needed for testing, and that only one positive result would be needed to justify the measures requested in the infringement action, the LD partially granted the application, ordering Xingi to produce just two of the fabric types requested. However, the LD refused to order Xingi to produce the internal testing results on the grounds that Xingi had submitted that the internal testing was not carried out under the conditions specified in the patent. 
 

UPC

Düsseldorf Local Division grants Yangtze Confidentiality Order against itself to comply with US export controls.
[Yangtze v Micron UPC_CFI_1034/2025 & UPC_CFI_931/2026]

On 11 May 2026, the Düsseldorf LD issued an order in the ongoing proceedings between Yangtze Memory Technologies (Yangtze) and Micron Technology (Micron). Yangtze is suing Micron for infringement of EP 3 909 047, which relates to advanced semiconductor memory technology. 

Yangtze sought to introduce a report by the independent source TechInsights on the operation of the challenged embodiment (the Report) to support its case on infringement. In parallel US proceedings between the same parties, Yangtze’s US counsel had entered into an agreement with TechInsights to allow US counsel to use the Report for the purpose of substantiating infringement of the US equivalent of EP 047. However, the agreement prohibited Yangtze’s US counsel from disclosing the content of the Report to Yangtze itself, in order to comply with US expert restrictions. 

Yangtze therefore sought a confidentiality order preventing it from gaining access to the contents of the Report, therefore ensuring that its counsel would comply with the provisions of the agreement with TechInsights.

The LD found that in line with previous UPC case law, a party can be granted a confidentiality order “against itself” provided there is a legitimate interest in such an order. In this case, Yangtze had a legitimate interest in being able to introduce the Report into proceedings without risk under US export control restrictions. Yangtze had also not sought to limit the number of natural persons from Micron’s side who could have access to the document, such that the order was limited to the minimum extent necessary. It was also permissible for Yangtze to exclude all natural persons on its own side from the confidentiality club, r. 262A.6 RoP is not a mandatory provision.

The LD therefore granted the requested confidentiality order.

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

Episode 57: Düsseldorf Local Division rejects expert bias challenge and upholds ex parte inspection regime.

Episode 58: Court of Appeal clarifies urgency and waiver of invalidity defences in provisional measures proceedings.