By decision dated 24 August 2023, the Munich UPC Central Division assessed the admissibility of a revocation action filed at the Central Division the very same date of an infringement action filed at the local division in the battle between Amgen and Sanofi on cholesterol-lowering agents. The UPC rejected Amgen's objection considering as decisive to determine which action was filed first the exact date and time of filing of the actions.
On June 1, 2023, when the UPC came into operation, Sanofi filed a revocation action against Amgen before the Munich Central Division. Simultaneously, Amgen filed an infringement action against Sanofi and Regeneron before the Munich Local Division. However, technical issues with the Court Management System (CMS) led to both parties submitting their actions in hard-copy format. Sanofi filed the revocation action in Luxembourg, while Amgen filed the infringement action at the Munich Local Division.
In response, on 20 July 2023Amgen filed a preliminary objection of inadmissibility of the revocation action filed by Sanofi under Article 33(4) UPCA. In particular Amgen argued to have filed the infringement action first as it emerged from the information available on the CMS showing that the “date of lodging” for their infringement action preceded that of Sanofi's revocation action. Additionally, Amgen contended that Sanofi had filed their action in the wrong location, choosing the Registry of Luxembourg instead of the sub-registry of the competent Munich Central Division.
The central issue revolved around Article 33(4) UPCA, which stipulates that a revocation action should be brought before the central division unless an infringement action between the same parties, involving the same patent, is filed before a local or regional division. In such cases, the revocation action may only be brought before the same local or regional division.
The UPC Judge emphasized that the UPC's primary objectives are to enhance legal certainty, expedite proceedings, and deliver high-quality decisions. To fulfil these objectives, the UPC rules governing internal competence, including Article 33(4) of the UPCA, must be clear, predictable, and based on objective criteria.
The Judge ruled that the decisive factor in determining which action was filed first in time is the exact date and time of lodging the statements of claim and the statement of revocation. The Judge dismissed the relevance of the time the actions appeared on the CMS or the parties' subjective knowledge, focusing solely on the timing of…