Irides: Weekly global patent litigation update

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

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

Switzerland

Swiss Federal Patent Court accepts cross-border jurisdiction for interim relief. 
[Regeneron et al v Sandoz S2025_003]

In a decision handed down on 17 July 2026 and published earlier this week, the Swiss Federal Patent Court confirmed for the first time that it is prepared to grant a cross-border injunction against defendants domiciled in Switzerland.

The decision arose from interim proceedings brought by Regeneron and Bayer against Sandoz, a Swiss-domiciled company, seeking a Preliminary Injunction (PI) in Switzerland and a further 19 EPC contracting states in relation to Sandoz’ aflibercept biosimilar product.

Referring to the CJEU decisions in Solvay v Honeywell and BSH v Electrolux, the Swiss Court found that it has jurisdiction to grant cross-border injunctions against companies domiciled in Switzerland. Notably, even where invalidity is raised as a defence, the Swiss court held that the exclusive jurisdiction requirement in Art. 22(4) of the Lugano Convention (which reserves questions of registration and validity to the courts of the state in which that patent was registered) did not preclude it from exercising jurisdiction in relation to infringement. 

Although the Swiss Court reiterated that final decisions on infringement must be determined according to the law of where the patent is registered, it held that, for the purposes of interim relief, a prima facie finding under the applicable foreign law is sufficient to support the grant of a cross-border PI. The Swiss Court also confirmed that other procedural requirements for interim proceedings, such as urgency and risk of irreparable harm, are governed by the law of the forum in which the application is brought.

While the Swiss Court ultimately refused to grant a PI against Sandoz on the basis there was no prima facie finding of infringement under the doctrine of equivalents, this decision has important implications for patentees seeking relief across multiple EPC contracting states.
 

Netherlands

The Court of Appeal rules on scope of patent law compounding exception. 
[Novo Nordisk v Ceban]

On 5 August 2026, The Hague District Court handed down a decision in PI proceedings between Novo Nordisk and Ceban Ziekenhuisfarmacie (Ceban). Novo Nordisk applied for preliminary relief, alleging infringement of its semaglutide patent and SPC with respect to Ceban’s preparation and supply of compounded semaglutide nasal sprays to patients and other pharmacies.

Ceban argued that its compounded semaglutide nasal spray fell within both the regulatory and patent law pharmacy exemptions. The Court disagreed, emphasising that the regulatory exemption serves public health objectives by creating an exception to marketing authorisation requirements, whereas the patent law exemption is a narrowly construed derogation from the patentee’s exclusive rights. Although the Court did not rule on Ceban’s compliance with the pharmacy exception, it noted that in principle, a pharmacy may satisfy the regulatory exemption and still infringe a patent or SPC.

On the facts, the Court considered that supplying nasal sprays to other pharmacies, registration in the G-Standard, promotion of the product and the importation of enough semaglutide to manufacture thousands of units all pointed towards activity that was structural rather than genuinely patient specific. Granting the requested injunction, the court also issued disclosure, destruction, recall, and dissemination orders against Ceban.
 

Netherlands

Court of Appeal finds Rivaroxaban Dosage Regimen Obvious in Light of Clinical Trial Patient Materials. 
[Sandoz v Bayer 200.338.443/01]

On 28 July 2026, the Court of Appeal (CoA) found invalid Bayer Intellectual Property GmbH’s (Bayer) EP 1 845 961 B1 patent (EP 961), which covers a once-daily dosage regimen for the anti-coagulant rivaroxaban (marketed under the brand name Xarelto). The appeal was initiated by Sandoz B.V. (Sandoz). In its appeal, Sandoz relied on alternative prior art documents that were not considered by the first instance Court in November 2023.

At first instance, Sandoz had relied on two sets of prior art documents to support an inventive step attack on EP 961. A poster and abstract detailing the results of a Phase I clinical trial for rivaroxaban (Harder documents) were considered the closest prior art. However, the First Instance Court concluded that EP 961 was inventive over the Harder documents and therefore valid.

In addition to relying upon the Harder documents in its appeal, Sandoz proposed as prior art a patient consent form and information booklet. These documents were provided to deep-vein thrombosis patients enrolled in a Phase II clinical study (Einstein DVT documents). The Einstein DVT documents were obtained by Sandoz via a freedom of information request. Sandoz argued the following statement, made in the Einstein DVT documents, undermined the validity of EP 961: “BAY 59-7939, is available in tablet form, is taken once a day and works quickly”.

Bayer argued the Einstein DVT documents were not part of the state of the art. The CoA concluded that the relevant test was “the mere existence of the theoretical possibility for a member of the public to be able to take note of the information… unless explicit or implicit confidentiality has been agreed” [emphasis added].

Bayer accepted that the Einstein DVT documents had been issued to 10 patients before the relevant priority date, but this did not constitute “making available to the public” within the meaning of Art. 54(2) European Patent Convention. These patients were argued to have a special relationship with the study sponsor (Bayer), which resulted in an implicit duty of confidentiality.

Several features of the Einstein DVT documents were relied upon to support Bayer’s contention, which the CoA ultimately rejected. In particular, it concluded that restrictions on how rivaroxaban was dispensed to patients did not extend to the form and booklet. While spare tablets had to be returned to Bayer, the form was provided to the patient in duplicate so a copy could be retained and used by the individual concerned. This conclusion was supported by statements from the Dutch researchers involved, who considered that no duty of confidentiality existed with respect to the form, which was “non-confidential by its nature”.

Bayer also argued that, should patient consent forms be considered ‘publicly available’, patentees could be dissuaded from generating necessary data to avoid producing anticipatory prior art. The CoA only considered if these broader consequences would make a patient believe they had a duty of confidentiality to Bayer in respect of the Einstein DVT documents. However, it also noted that negative consequences could be avoided by explicitly agreeing the confidentiality of clinical trial documents with patients. 

Having concluded that the Einstein DVT documents were prior art, the Court found the integers of EP 961 were disclosed in these documents. In particular, it was noted that the skilled person would have a reasonable expectation of success for the claimed once daily dosage regimen due to the initiation of the Phase II study detailed in the Einstein DVT documents. Having found EP 961 lacked an inventive step over the Einstein DVT documents, it was not considered necessary to consider the Harder documents.
 

UK

Court of Appeal provides Guidance on Accounting for Patent Infringement Profits. 
[Lufthansa v Astronics [2026] EWCA Civ 964]

This was an appeal by Lufthansa against the finding at first instance that Astronics and Panasonic should account for 13% of the profits generated by the sale of their infringing systems. Lufthansa contended that the Judge should have ordered them to account for 100% of those profits. It argued that Astronics could not obtain certification and regulatory approval for its infringing system without using features of the patented invention, thereby making the patent a "gateway" to market access.

The CoA held that it was not enough that the patented feature was necessary for market access and therefore the realisation of profits. The relevant question was whether the profits genuinely derived from the infringement or whether they were generated by other factors. Even where the patent acts as a gateway to the market, profits may be driven by other factors such as regulatory requirements, product performance, commercial advantages, service quality, customer demand and other technical features. In such circumstances, profits must be apportioned to reflect the actual contribution made by the patented invention.

The Court also rejected Lufthansa’s argument that the failure of the defendants to identify a non-infringing alternative automatically entitled it to 100% of their profits. Whilst differential profits analysis based on a non-infringing alternative is one possible tool for identifying the profits attributable to the infringement, it is not the exclusive approach under English law and the Court may instead determine the profits derived from the infringement by making a fair apportionment.

Applying these principles, the Court upheld the judge’s finding that the patented features wereonly one contributing factor to the success of the defendant’s systems. It therefore upheld the judge’s decision that 13% of profits were attributable to the infringement and recoverable by way of fair apportionment.
 

UPC

Paris Local Division Refuses Stay UPC proceedings despite parallel National Revocation action. 
[Viatris v Merz UPC-CFI-0001901/2026]

On 30 July 2026 the Paris Local Division (LD) refused to stay the infringement action initiated by several companies in the Merz group (Merz) despite parallel revocation proceedings before the Paris National Court, Tribunal Judiciaire de Paris (Paris TJ). The Court’s decision provides further guidance on the application of Art. 29 and 30 of the Brussels I Recast Regulation (BIRR) to parallel national and UPC proceedings.

The dispute concerned French SPC No. 13C0033 relating to fampridine, relied upon by Merz to seek provisional measures against Viatris Santé (Viatris) before the UPC on 31 July 2025. Later, on 16 April 2026, Viatris filed a request for a declaration of non-infringement and revocation before the national Court, Paris TJ. Merz initiated main infringement proceedings against Viatris at the LD a month later.

A central issue was whether the UPC or the national Court had been first seised for the purposes of Art. 29 BIRR. Art. 29 addresses the issue of lis pendens, namely, that any Court other than that first seised shall decline jurisdiction in favour of the first Court:

“where proceedings involving the same cause of action on and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established”.

Although LD considered the Paris TJ were first seised, it found that Art. 29 BIRR did not apply because the actions did not concern the same cause of action and subject matter: the national case sought revocation and a declaration of non-infringement, while the UPC proceedings concerned infringement.

The LD accepted that the proceedings were "related actions" under Art. 30 BIRR because they involved the same parties, the same SPC and the same underlying product. Unlike Art. 29, which requires that jurisdiction must be declined in cases of lis pendens, Art. 30 confers a discretion to stay proceedings where there are related actions pending before different Member State Courts.

In declining to stay the UPC proceedings, the LD emphasised the UPC's objective of delivering decisions efficiently and considered it likely that the UPC would reach judgment before the Paris TJ. The LD also considered the risk of inconsistent outcomes manageable, noting that any UPC injunction would lose practical effect if the SPC were later revoked nationally.

On that basis, the possibility of a later national revocation judgment was not sufficient to justify delaying the UPC proceedings.
 

UPC

Düsseldorf Local Division Rejects PI Application for Failure to Substantiate Market Share Harm.
[ParTec v Lenovo UPC_CFI_2258/2026]

On 30 July 2026, the Düsseldorf LD dismissed an application by ParTec AG for a PI against Lenovo companies concerning alleged indirect infringement of EP 3 743 812 B1, a patent relating to the dynamic allocation of resources in heterogeneous computing systems. The application was brought alongside pending infringement proceedings on the merits between the same parties.

ParTec had requested an ex-parte PI or the shortest possible inter-partes procedure. However, the Court found there was no risk of evidence destruction and nothing showing that a short delay to hear Lenovo would itself cause irreparable harm. The fact that Lenovo had allegedly changed from an earlier to a newly accused product without informing ParTec did not justify dispensing with the defendants’ right to be heard.

Further, the Court went on to dismiss the application entirely, without hearing the defendants. The Court held that there was no necessity for provisional measures. While ParTec argued that Lenovo’s newly marketed system was causing continuing harm and the parties were direct competitors, the Court found that ParTec had failed to substantiate its allegations of irreparable harm or loss of market share. In particular, the Court emphasised that where a claimant relies on the ongoing erosion of market share as the basis for urgent relief, it must provide a detailed and evidence-based account of the market situation before the allegedly infringing product entered the market, including the market share at risk and why any losses would be difficult to reverse. This was particularly the case here as while Lenovo was now marketing a new embodiment, it had previously marketed a different product which the Munich LD had found to be non-infringing when marketed by a third company (this decision was on appeal). The granting of a PI would therefore not preserve the status quo but would instead alter an existing competitive market situation. 

A further point against ParTec arose from the fact that there were ongoing proceedings on the merits against the defendants. The Court held that provisional measures could be granted while merits proceedings are pending, but the requirements stipulating that it must be unjustifiable for the applicant to await a decision in the main proceedings on the merits are even more applicable.

The decision provides further guidance on the UPC’s developing approach to urgency and necessity in PI proceedings. It confirms that applicants relying on market-share loss must present evidence of the competitive landscape and the irreversibility of the alleged harm.
 

UPC

Patent Mediation and Arbitration Centre Introduces Expert Determination for Patent Disputes. 
[Expert Determination]

The Patent Mediation and Arbitration Centre (PMAC) has expanded its alternative dispute resolution offering by introducing Expert Determination proceedings, allowing parties to obtain an independent assessment of specific legal, factual or technical issues arising in patent disputes. The new procedure is intended to provide a flexible mechanism for resolving complex patent matters, including SEP/FRAND disputes, and can be accessed through PMAC’s Case Management System.
 

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

Episode 78: Court of Appeal rejects Guardant Health’s preliminary injunction application due to unreasonable delay.

Episode 79: Hamburg Local Division restricts UPC jurisdiction over UK patent parts despite EU anchor defendants.