UPC Court of Appeal’s first ruling provides guidance for patent litigants

Dr. Julia Traumann of Pinsent Masons was commenting after the UPC Court of Appeal determined that pharmaceutical patent owner Amgen had validly served its claims against rivals Sanofi and Regeneron in respect of patents for two medicinal products that help to lower patients’ cholesterol levels, but nevertheless granted Sanofi and Regeneron an extension to their deadline for submitting a response.

The local division of the UPC in Munich as first instance court had previously also determined that Amgen had validly served its statement of claim on Sanofi and Regeneron on 11 July 2023, despite the fact that the attachments supplementing the statement were not attached and had not been available when the representatives of the defendants accessed the UPC case management system with the relevant access code until 10 August 2023.

Sanofi and Regeneron requested that the three-month period for lodging a statement of defence be calculated from 10 August 2023, being the date the annexes were accessible, and thus set to end at 10 November 2023. In their request, Sanofi made an explicit reference to the general principles of fairness and equality of arms which the court considered to represent a request for an extension of the deadline pursuant to Rule 9.3 of the UPC Rules of Procedure (RoP).

The UPC Court of Appeal said, though, that Amgen’s claim had been filed validly in line with the RoP. Traumann said: “The court confirmed that annexes do not have to be served at the same time as the statement of claim provided that – and this is important – the statement of claim, when read without the annexes, enables the defendant to assert its rights in court proceedings before the courts of the UPC."

Nevertheless, the UPC Court of Appeal granted Sanofi and Regeneron an extension to 10 November 2023 to issue their statements of defence. It found that there must be an extension of deadline to compensate for and thus be equal to the period during which the annexes had not been available after service of the statement of claim.

Traumann added that the UPC Court of Appeal will take on an increasingly important role in applying uniform case law on issues pertinent to UPC proceedings as more cases come before it. Until then, she highlighted the potential for different local and regional divisions of the UPC to reach different conclusions and make different interpretations on legal and procedural matters. This, she said, is likely to spur ‘forum shopping’ by parties raising UPC claims in the short- to medium-term.