1. Key takeaways
Re lis pendens (Art. 29 Brussels I recast):
- Here, the UPC was not “the court first seized” based on the date on which the application for provisional measures was filed before the UPC.
- The earlier application for provisional measures before the UPC and the later filed national French action for revocation of the SPC, for a declaration of non-infringement, and for a compulsory licence do not have the “same cause of action”.
Re related cases and may stay (Art. 30 Brussels I recast):
- The need to stay the later filed UPC proceedings on the merits or to decline jurisdiction in favor of the earlier filed national French proceedings must be assessed by evaluating the facts of the case.
- Here, the stay is denied in view of limited consequences of conflicting decisions, progress in proceedings, and strict time limit regime of UPC.
The application for provisional measures and the action on the merits are two distinct proceedings, each governed by specific rules and each pursuing a different objective. In the present case, the action for provisional measures was meanwhile closed. Moreover, an application for provisional measures is not necessarily followed by the filing of an action on the merits. The action for provisional measures cannot be equated with an application for legal aid in order to bring the action on the merits before court. (p. 6, para. 1).
The likelihood that the final decision of the UPC will be handed down prior to the decision of the national court is relevant. In general, the timeline before the national court depends on the parties’ conduct during the proceedings, whereas the UPC rules establish a strict and mandatory time limit regime (the UPC aims to deliver decisions within 12 months). Based on the present circumstances, the Court considers that the UPC’s decision will likely be handed down before the national court will issue its decision. Even if the UPC issued an injunction and the SPC is subsequently revoked by the national court, the necessary conclusions can be drawn: The injunction would no longer have any effect due to the invalidation of the SPC (“one bullet kills”).
2. Division
Local Division Paris
3. UPC number
UPC-CFI-1901/2026
4. Type of proceedings
Preliminary objection (R. 19 RoP)
5. Parties
Applicant (Defendant in the main proceedings):
Viatris Sante
Respondents (Claimants in the main proceedings):
Merz Pharma France, Merz Therapeutics GmbH, Merz Pharmaceuticals LLC
6. Patent(s)
French SPC No. 13C0033EP2377536 based on EP 2 377 536
7. Body of legislation / Rules
Rule 19 RoP, Art. 29, 30 Brussels Reg I Recast.
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