Irides: Weekly global patent litigation update

This edition features updates from: Germany, the European Patent Office (EPO), the Unified Patent Court (UPC) and Vietnam.

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

Germany

Munich Regional Court finds infringement of dabigatran etexilate patent and refuses stay request pending nullity assessment. 
[Towa v Accord Healthcare]

On 31 August 2026, the Munich Regional Court issued a decision finding that Accord Healthcare had infringed Towa Pharmaceutical’s patent, rejecting Accord’s request to stay infringement proceedings despite the defendant having commenced German nullity proceedings shortly after the EPO Board of Appeal (BoA) had upheld the patent in amended form.

The patent, EP 2 817 000, concerned pharmaceutical compositions containing dabigatran etexilate mesylate. The proceedings had already been suspended once by the Munich Court while EPO appeal proceedings were ongoing. Following the BoA's decision remitting the case to the Opposition Division for maintenance of the patent in amended form, the infringement proceedings resumed. Accord subsequently relied on a newly filed nullity action before the German Federal Patent Court and requested that the infringement action be stayed again pending determination of validity.

The Court reiterated the principle that the mere existence of a validity challenge is not a sufficient basis for a stay. To decide otherwise would effectively give every nullity action suspensive effect, contrary to the structure of German patent litigation. The Court emphasised that the patent proprietor's interest in enforcing a granted patent normally takes precedence because the patent term is limited and a stay effectively suspends the practical value of injunctive relief for the duration of the validity proceedings. A stay should therefore generally be granted only where revocation appears highly probable.

Of particular interest is the Court's treatment of the earlier EPO proceedings. The defendants argued that the BoA's decision carried limited significance because German Courts apply a different approach to inventive step from that applied by the EPO. The Court accepted the principle that infringement Courts must assess validity challenges through the lens of the tribunal that will ultimately decide them and therefore cannot simply defer to EPO decisions where German nullity law applies different legal standards. Nevertheless, the Court drew a distinction between legal standards and technical assessments. While legal questions may be assessed differently, technical findings of specialist bodies such as the EPO should generally be respected unless they can be shown to be manifestly incorrect. The Court held that German infringement Courts must independently consider the prospects of success of the nullity action but should not substitute their own (lay) assessments for those of technically qualified EPO bodies without good reason.

The Court also considered whether a second stay application should be viewed differently where infringement proceedings have already been stayed once during opposition or appeal proceedings. It concluded that no absolute rule exists. Although the patent proprietor's interest in obtaining effective and timely relief becomes particularly important after a lengthy earlier stay, a second stay remains legally possible if the circumstances justify it.  

Applying those principles, the Court found no realistic prospect that the Federal Patent Court would revoke or further restrict the patent. It accepted that German nullity proceedings may apply a different inventive step analysis from that used by the EPO. However, even applying the German approach, the Court considered the patent likely to survive. The BoA's conclusion on the disclosure of the cited prior art was regarded as technically persuasive and the Court saw no basis for treating that assessment as manifestly wrong.  The Court concluded that revocation was not sufficiently likely to justify depriving the patentee of immediate enforcement.
 

EPO

EPO publishes G 1/25 on description amendments.

On 3 September 2026, the EPO published its decision in G 1/25. This decision addresses one of the more controversial issues in recent EPO practice: whether a patent proprietor must always adapt the description following a claim amendment.

The referral arose from opposition appeal proceedings concerning a hydroponics growing medium patent owned by Knauf Insulation, where amendments to the claims created a mismatch between the amended claim language and passages remaining in the description.

Two approaches in dealing with such issues had emerged in the BoA case law, both of which were rejected by the Enlarged Board of Appeal (EBA). These were (i) an approach requiring the description to be brought into formal alignment with the claims whenever any inconsistency exists; or (ii) the line of authority represented by decisions such as T 56/21, T 1989/18, T 1444/20 and T 2194/19, which had treated inconsistencies between claims and description as largely irrelevant and rejected any basis in the EPC for mandatory adaptation.

The EBA has instead adopted the following approach: “If the claims of a European patent, or patent application, are amended during proceedings before the departments of the EPO, or in appeal proceedings, and the amendment introduces an inconsistency between the amended claims and the description, including any drawings, of the patent, or application, and because of that inconsistency Art. 52 to 57, 76(1), 83, 84, 123(2) or 123(3) EPC are not complied with, it is necessary to adapt the description, including any drawings, to the amended claims so as to remove that inconsistency.”

Central to the EBA's reasoning was the earlier decision in G 1/24. The Board reaffirmed that claims must always be interpreted in the light of the description and drawings. It emphasised, endorsing T 439/22, which implements G 1/24, that claim interpretation is a holistic exercise that results from reading the claims, the description and drawings as a unitary process; the description is not consulted only where uncertainty exists. According to the EBA, therefore, several of the authorities relied upon by proponents of the more permissive approach to description amendment could no longer be maintained following G 1/24 because those had proceeded on the assumption that claims are assessed in isolation from the description.

The EBA defined an inconsistency as arising where statements in the description or drawings suggest an understanding of a claim that is incompatible with the meaning the skilled person would attribute to the claim in isolation, and where that incompatibility cannot readily be resolved using the principles of claim interpretation set out in G 1/24. Importantly, however, the EBA stressed that the mere existence of unclaimed embodiments or examples in the description does not, by itself, create an inconsistency. An inconsistency exists only where the disclosure creates genuine uncertainty as to the scope or meaning of the claim.

The practical significance of the decision lies in the Board's rejection of a requirement for mere "formal concordance", meaning that patentees are not required to remove every embodiment, example or teaching that falls outside the amended claims as a matter of course, but rather only where the inconsistency creates uncertainty.
 

UPC

Court of Appeal clarifies the scope and limits of Art. 60 UPCA in evidence preservation measures.
[WEPA v Essity UPC_CoA_113/2026]

On 3 September 2026, the Court of Appeal (CoA) issued its decision in WEPA Nederland B.V. v Essity Hygiene concerning an application for evidence preservation and inspection measures.

WEPA Nederland B.V. (WEPA) brought a revocation action in the Paris seat of the CD relating to Essity Hygiene (Essity)’s patent, EP 3 289 139, which protects tissue paper containing pulp fibres derived from Miscanthus and a method for manufacturing the same. Essity filed a Defence and Counterclaim, and applied for and obtained, an ex parte order allowing preservation of evidence and inspection of WEPA’s facilities to support its infringement allegation (under Art. 60 UPCA).

WEPA first lodged an application for review, which was dismissed, and then filed an appeal, requesting the ex parte order and the review order be set aside.

The CoA considered that under Art. 60(5) UPCA and r.197.1 RoP, an ex parte order is justified where there is a plausible risk that evidence (in this case, digital records, samples and raw production materials) could easily be destroyed or otherwise cease to be available. The CoA clarified that Art. 60 UPCA is not limited to technical documentation and can encompass promotional or commercial documentation, as evidence preservation orders may cover any “relevant evidence” of alleged infringement (Art. 60(1) UPCA).

A Court is entitled under r.194.1(d) and r.194.2 RoP to use its discretion to decide an application ex parte and a relevant factor is the probability that evidence may cease to be available. Urgency is not a prerequisite, nor is a Court required to substantively assess patent validity when considering an inspection and preservation application. Whilst there were some “uncertainties and points of contention” regarding patent validity in this case, they were deemed insufficient to deny Essity the right to preserve evidence necessary for its infringement claim. The Court also concluded that where preservation of evidence is necessary for an applicant to bring an infringement action, the general rule is that an applicant’s interest in preserving evidence prevails even if the respondent believes it can defend itself on the basis of a prior use right under Art. 28 UPCA. The proper procedure for determining alleged prior use is the infringement action and the purpose of preservation of evidence is merely to ensure all relevant evidence is available for such proceedings. Only where it is clear on summary examination that an infringement action has no prospect of succeeding in light of alleged prior use must an evidence preservation application be dismissed.

The Court did, however, confirm that Art. 60 UPCA does not confer the power to allow a bailiff or expert to question personnel on technical details relating to a respondent’s products or production processes. There was no legal basis for questioning WEPA personnel where the questions did not merely concern practical information necessary for evidence preservation (such as questions relating to passwords necessary to access data, which would be permitted).

The CoA partially revoked the ex parte and review orders and ordered the expert report be redrafted to remove material derived from interviews, but otherwise left the original preservation measures intact.
 

UPC

The Düsseldorf Local Division clarifies the role of evidence preservation in establishing infringement.
[fiskaly v SwissBit UPC_CFI_1332/2026]

On 7 September 2026, the Düsseldorf Local Division (LD) issued its decision in fiskaly GmbH v SwissBit AG and Swissbit Germany AG, also concerning an application for evidence preservation and inspection measures.

fiskaly GmbH (fiskaly), the proprietor of EP 4 285 308, which relates to the secure registration of sequences of transactions, filed an application on 20 April 2026 for an inspection and preservation order, which was subsequently granted. SwissBit AG and Swissbit Germany AG (SwissBit) filed an application to review the order pursuant to r.197.3 RoP on the basis that fiskaly had failed to demonstrate a sufficient likelihood of infringement.

In its decision, the Court confirmed that the standard of proof in inspection proceedings must not be set too high. A credible allegation of patent infringement is sufficient, with the requirement under Art. 60(1) UPCA to submit “reasonably available evidence” representing a lower burden of proof than in infringement proceedings. However, mere speculation is not sufficient, and to prevent a “fishing expedition” it must be plausible that the patent is being infringed especially where an order is issued ex parte.

In this case, the Court found that fiskaly had demonstrated a sufficient likelihood of infringement in an expert report. Further, in prior licence negotiations, SwissBit had rejected fiskaly’s proposal for an assessment by a neutral body, which the Court felt justifiably fuelled suspicion of infringement. SwissBit had also filed a protective submission prior to inspection proceedings that contained no non-infringement arguments, and the court found this reinforced a sufficient likelihood of infringement.

The Court affirmed that likelihood of infringement cannot be ruled out merely because alternative non-infringing solutions may exist. If there is a possible alternative solution, an essential purpose of preservation proceedings is to investigate and secure evidence that an embodiment does in fact make use of the technical teaching of the patent and not the alternative. Possible alternative solutions will preclude evidence preservation orders only if they render patent infringement no longer plausible – which was not the case here.

The ex parte order was justified as there was a demonstrable risk that delay could lead evidence to be destroyed or no longer be available (r.197.1 RoP). Even if alteration of the source code or software would not be possible or would be detectable, this would not have prevented SwissBit from making it more difficult for fiskaly if given adequate advance notice. The cross-border structure of SwissBit was also a factor, as this increased the risk that, with notice, evidence could be withheld or access made more difficult. SwissBit’s rights were also not unduly infringed by an ex parte order; although an inspection of business premises involves a high degree of intrusion, it would not cause specific disruption to business operations.

Other than a minor modification to the existing order regarding transport of obtained products, documents, records and/or media to the registry of the Düsseldorf LD, SwissBit’s review application was dismissed.
 

UPC

Munich Central Division clarifies limits of entitlement based revocation under Art. 138(1)(e) EPC.
[Wittenstein SE v Vestas Wind Systems A/S UPC­_CFI_523/2025]

On 2 September 2026, the Munich Central Division (CD) handed down its decision in the free-standing revocation action brought by Wittenstein SE (Wittenstein) against Vestas Wind Systems (Vestas) in relation to a wind turbine gearbox patent EP 4 226 039.

As well as attacks based on insufficiency, lack of novelty, and lack of inventive step, Wittenstein also argued that Vestas was not entitled to the patent under Art. 60(1) EPC on the basis that the actual inventor was an employee of Wittenstein when the invention was made.

The Court had to first decide whether an entitlement based revocation claim can be brought by any person, on the basis that the current proprietor is wrongly on the register, or only by someone who shows that they themselves are the true proprietor, with Vestas arguing that Wittenstein had failed to conclusively show it was the true proprietor. The CD held that while the ultimate question of entitlement would be an issue for a national Court, it had some sympathy for the view that such a revocation attack should be reserved for a rival claimant to title. While on the pleaded cases it did not have to determine that question of law as such, it considered that Wittenstein had, in any event, made out a prima facie case of entitlement that was sufficient for its attack to be considered.

On the substance of the entitlement based revocation, the CD noted that there is a rebuttable presumption that the person currently on the register is entitled to the patent. The burden therefore lay upon the Claimant to displace that presumption. Here, while Wittenstein had put forward evidence to show its employee was involved in the invention, it had not proved that he was the sole inventor or that Vestas had not been involved at all in the invention (and so did not have any rights to the patent). This ground of revocation therefore failed.

The panel also found in favour of the patentee, Vestas, on novelty and inventive step attacks. The panel did note, however, that the patent as granted contained claims 21 and 22, which were not sufficiently disclosed and which were invalid, so ultimately upheld the patent in amended form with claims 21 and 22 deleted.
 

Vietnam

Government of Vietnam updates its Intellectual Property Strategy.
[Decision No.1068/QD-TTg]

In a decision of 21 August 2026, the government of Vietnam issued updates to its Intellectual Property Strategy. The revised strategy emphasises faster and more transparent grant procedures, stronger enforcement of IP rights, and greater participation by universities, research institutions, start-ups and businesses in creating and commercialising IP. It also introduces measures to promote the valuation and trading of IP rights, including a pilot programme supporting the valuation of at least 100 IP assets held by universities, research institutes and innovative start-ups. The amendments further seek to integrate IP policy with broader science, technology, innovation, industrial and economic strategies.

A notable feature is the increased emphasis on digital technologies and emerging technologies. The strategy calls for legislative development relating to Artificial Intelligence (AI), big data, blockchain, biotechnology, semiconductors and other non-traditional forms of IP, while also strengthening measures against online infringement.

Although the updates do not materially change Vietnamese IP law, they indicate the priorities of the Vietnamese government looking forward to 2030.

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