UPC Unfiltered, by Willem Hoyng – UPC Decisions Week 35, 2026

In 'UPC Unfiltered' for week 35 of 2026, published August 31, Willem Hoyng of Hoyng Rokh Monegier reviews the latest Unified Patent Court decisions, led by the Hamburg Local Division's August 24 judgment in Fraunhofer v HMD. Fraunhofer sued the maker of Nokia smartphones over EP 2 380 167, an advanced audio coding (AAC) standard-essential patent licensed through the VIA AAC patent pool. Although the pool manager had asked HMD to take a license since 2017, the defendant never did and never provided security. The court upheld the patent — after Fraunhofer made its first auxiliary request unconditional, priority was valid, and the patent was novel and inventive — and found infringement because the standard implemented in the defendant's products reads on the claims.

The court discussed exhaustion in detail, holding that the effects of exhaustion extend to device claims and, in principle, to method claims relating to the handling of a protected product placed on the market with the patent holder's consent — but found no exhaustion here. It rejected the FRAND defense under the CJEU's Huawei v ZTE framework, which requires genuine willingness by the implementer — 'no lip service' — and a reasoned FRAND offer by the SEP holder; where licenses are always granted as part of a pool license, offering that pool license is generally sufficient. The injunction was granted. Hoyng comments that the defendant managed to keep the claimant at bay for eight years without paying, exposing the SEP holder to the risk of the implementer's insolvency, and that the finding of unwillingness was already justified by the failure to provide security.

The week also produced instructive court-fee rulings. In Genevant v Moderna (Local Division The Hague, August 25), the parties settled infringement and revocation proceedings, but the court reimbursed only 25% of the court fees instead of the standard 50%, because the very substantial written proceedings had almost ended and the court had already dealt with extensive preliminary objection proceedings and numerous applications — an exception justified under R. 370.9(e) RoP that Hoyng applauds for a self-financed institution. By contrast, in Malikie v Xiaomi (Hamburg, August 24), where the parties settled before the written proceedings closed and both requested withdrawal and fee return, the court ordered the standard 50% reimbursement; and in Sun v Vivo (Paris, August 25), no reimbursement was ordered because the parties had not requested it — a reminder to combine a fee-refund request with the withdrawal request.

Other highlights include Xingi v Avient (Court of Appeal, August 27), which restated the principles for R. 190 RoP orders to produce evidence — no fishing expeditions, and the cumulative requirements of plausibility, specificity, necessity and proportionality, with appellate interference only for errors of law or manifest errors of assessment — and Hurom v NUC (Court of Appeal, August 28), confirming the high threshold for new auxiliary requests on appeal and accepting UPC jurisdiction over acts in Poland via the Brussels I bis Regulation. In Sypox v Topsoe (Central Division Munich, August 27), the court upheld the defendant's SME status — and its 50% fee reduction — despite a 10% shareholding by a large company whose veto rights did not amount to controlling influence.

Original Link: https://www.hoyngrokhmonegier.com/news-insights/detail/upc-unfiltered-by-willem-hoyng-upc-decisions-week-35-2026