ORD_589338/2023 | EP2359858 | UPC Decision Search

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19 December, 2023	Order	ORD_589338/2023	Düsseldorf (DE) Loca…	EP2359858	R.37.1 ROP ...	Please log in to add tags.	Please log in to add notes. Please log in to add tags. Show on UPC ORD_589338/2023 UPC_CFI_201/2023 19 December, 2023 Order Summary (AI generated) Parties N.V. Nutricia v. Nestlé Health Science (Deutschland) GmbH Registry Information Court Division: Düsseldorf (DE) Local Division Type of Action: Infringement Action Language of Proceedings: EN Patent at issue EP2359858 Cited Legal Standards Art. 33(3)(a) UPCA Art. 33(3) UPCA R. 33 RoP R.37.1 ROP Documents Download Order (EN) Add a custom note or summary to this decision Styles Text Heading 1 Heading 2 Heading 3 Bold ⌘B Italic ⌘I Strikethrough ⌘+Shift+S Bullet list Ordered list Blockquote ⌘+Shift+B Insert link ⌘K Insert link Unlink Align Left Center Right Local Division Düsseldorf UPC_CFI_201/2023 Procedural Order of the Court of First Instance of the Unified Patent Court issued on 19 December 2023 concerning EP 2 359 858 CLAIMANT: N.V. Nutricia, Eerste Stationsstraat 186, 2712 HM Zoetermeer, Netherlands, represented by the Managing Director … represented by: Prof. Dr. Nils Heide, Dr. Jan Wohlfahrt, Angelika Link, Gleiss Große Schrell und Partner mbB, Leitzstraße 45, 70469 Stuttgart, Germany electronic address for service: … DEFENDANT: Nestlé Health Science (Deutschland) GmbH, Lyoner Straße 23, 60528 Frankfurt/Main, Germany, represented by the Managing Directors … and …, Germany represented by: Dr. Matthias Meyer, Dr. Daniel Misch as well as patent attorneys Dr. Daniela Kinkeldey, Dr. Anne Halbach, Bird & Bird LLP, Carl-Theodor-Straße 6, 40213 Düsseldorf electronic address for service: PATENT AT ISSUE: European patent n° EP 2 359 858 PANEL/DIVISION: Panel of the Local Division in Düsseldorf DECIDING JUDGES: This Order has been issued by the presiding judge Thomas, the legally qualified judge Dr Thom, the legally qualified judge Agergaard and the technically qualified judge Hedberg. LANGUAGE OF THE PROCEEDINGS: English … SUBJECT: R.37.1 ROP, ART. 33 (3) UPCA GROUNDS OF THE ORDER: Since the parties did not raise any objections after being heard, the question of the procedure to be followed with regard to Art. 33(3) UPCA could already be decided before the closure of the written procedure, with the result to decide according to Art. 33(3)(a) UPCA. In general, an earlier decision under Art. 33(3) UPCA seems justified in the current situation of the Court, which is still under construction. Since some members of the panel are currently only employed on a part-time or case-by-case basis, it seems appropriate for reasons of procedural efficiency to obtain the assignment of the technically qualified judge (TQJ) at an early stage. Then he/she can be involved in the case management as soon as possible. Otherwise, there would be a considerable risk of delay if the TQJ was not appointed before the interim procedure and therefore could not be included in the timetable at an early stage. In this case, although the TQJ has already been appointed as a result of the application under R. 33 RoP these arguments still apply. An early decision on the bifurcation issue will set the framework for possible questions. This will enable the parties and the Court to manage the case accordingly. In the present case, the Local Division exercises its discretion to hear both the infringement action and the counterclaim for revocation (Art. 33(3)(a) UPCA). Such a joint hearing of the infringement action and the counterclaim seems to be appropriate in particular for reasons of efficiency. It is also preferable because it allows both issues - validity and infringement - to be decided on the basis of a uniform interpretation of the patent by the same panel composed of the same judges. Although validity and infringement issues in the chemical/pharmaceutical field can be demanding, the panel is composed of judges who are very experienced in patent law and familiar with difficult issues in this context. The assignment of the TQJ, who is experienced in the technical field in question, ensures that the Local Division is undoubtedly capable of deciding both matters. Order: For these grounds, after having heard the parties, the Court of First Instance of the Unified Patent Court, the Local Division in Düsseldorf, orders that it shall proceed with both the action for infringement and the counterclaim for revocation. Issued in Düsseldorf, 19 December 2023 NAMES AND SIGNATURES Presiding judge Thomas Legally qualified judge Dr Thom Legally qualified judge Agergaard Technically qualified judge Hedberg DETAILS OF THE ORDER: ORD_589338/2023 related to the main proceeding ACT_544303/2023 UPC-Number: UPC_CFI_201/2023 Subject of the Proceedings: Patent infringement action - Counterclaim for revocation

ORD_589338/2023

Local Division Düsseldorf UPC_CFI_201/2023

Procedural Order of the Court of First Instance of the Unified Patent Court issued on 19 December 2023 concerning EP 2 359 858

CLAIMANT:

N.V. Nutricia, Eerste Stationsstraat 186, 2712 HM Zoetermeer, Netherlands, represented by the Managing Director …

represented by:

Prof. Dr. Nils Heide, Dr. Jan Wohlfahrt, Angelika Link, Gleiss Große Schrell und Partner mbB, Leitzstraße 45, 70469 Stuttgart, Germany electronic address for service:

…

DEFENDANT:

Nestlé Health Science (Deutschland) GmbH, Lyoner Straße 23, 60528 Frankfurt/Main, Germany, represented by the Managing Directors … and …, Germany represented by:

Dr. Matthias Meyer, Dr. Daniel Misch as well as patent attorneys Dr. Daniela Kinkeldey, Dr. Anne Halbach, Bird & Bird LLP, Carl-Theodor-Straße 6, 40213 Düsseldorf electronic address for service:

PATENT AT ISSUE:

European patent n° EP 2 359 858

PANEL/DIVISION:

Panel of the Local Division in Düsseldorf

DECIDING JUDGES:

This Order has been issued by the presiding judge Thomas, the legally qualified judge Dr Thom, the legally qualified judge Agergaard and the technically qualified judge Hedberg.

LANGUAGE OF THE PROCEEDINGS: English

…

SUBJECT: R.37.1 ROP, ART. 33 (3) UPCA

GROUNDS OF THE ORDER:

Since the parties did not raise any objections after being heard, the question of the procedure to be followed with regard to Art. 33(3) UPCA could already be decided before the closure of the written procedure, with the result to decide according to Art. 33(3)(a) UPCA.

In general, an earlier decision under Art. 33(3) UPCA seems justified in the current situation of the Court, which is still under construction. Since some members of the panel are currently only employed on a part-time or case-by-case basis, it seems appropriate for reasons of procedural efficiency to obtain the assignment of the technically qualified judge (TQJ) at an early stage. Then he/she can be involved in the case management as soon as possible. Otherwise, there would be a considerable risk of delay if the TQJ was not appointed before the interim procedure and therefore could not be included in the timetable at an early stage. In this case, although the TQJ has already been appointed as a result of the application under R. 33 RoP these arguments still apply. An early decision on the bifurcation issue will set the framework for possible questions. This will enable the parties and the Court to manage the case accordingly.

In the present case, the Local Division exercises its discretion to hear both the infringement action and the counterclaim for revocation (Art. 33(3)(a) UPCA). Such a joint hearing of the infringement action and the counterclaim seems to be appropriate in particular for reasons of efficiency. It is also preferable because it allows both issues - validity and infringement - to be decided on the basis of a uniform interpretation of the patent by the same panel composed of the same judges. Although validity and infringement issues in the chemical/pharmaceutical field can be demanding, the panel is composed of judges who are very experienced in patent law and familiar with difficult issues in this context. The assignment of the TQJ, who is experienced in the technical field in question, ensures that the Local Division is undoubtedly capable of deciding both matters.

Order:

For these grounds, after having heard the parties, the Court of First Instance of the Unified Patent Court, the Local Division in Düsseldorf, orders that it shall proceed with both the action for infringement and the counterclaim for revocation.

Issued in Düsseldorf, 19 December 2023

NAMES AND SIGNATURES

Presiding judge Thomas

Legally qualified judge Dr Thom

Legally qualified judge Agergaard

Technically qualified judge Hedberg

DETAILS OF THE ORDER:

ORD_589338/2023 related to the main proceeding ACT_544303/2023

UPC-Number:

UPC_CFI_201/2023

Subject of the Proceedings:

Patent infringement action - Counterclaim for revocation