Netflix Services Germany v DivX (CoA, UPC_CoA_176/2026, 2 November 2026)

Dhenne Avocats · 4 November 2026

Our analysis

Summary

In an order of 2 November 2026 (UPC_CoA_176/2026 and UPC_CoA_177/2026), the Court of Appeal dismisses Netflix’s application for suspensive effect of its appeal against the decision of the Munich Local Division of 15 September 2026, which found it liable for indirect infringement of DivX’s unitary patent EP 4 213 033. The revocation of the patent by the EPO Opposition Division after that decision is not enough to stay its enforcement.

Facts and procedure

DivX alleges that Netflix indirectly infringes EP 4 213 033, a unitary patent stemming from the fourth divisional of a 2008 application, which protects a method of progressive playback of a media sequence by a client using a request queue, flushing of the queue and a mask of portions already downloaded. The patent expires in January 2028. On 15 September 2026, the Munich Local Division largely granted the infringement action and dismissed the revocation counterclaim. DivX gave notice of its intention to enforce the next day.

The Opposition Division, which had issued an unfavourable preliminary opinion on 3 July 2026, revoked the patent in its entirety after the hearing of 1 and 2 October 2026. Netflix sought suspensive effect, alleging that the judgment exceeded the subject matter of the action, was a surprise decision, wrongly extended to non-browser applications, misconstrued the claim, disregarded its confidentiality requests and conflicted with the EPO decision, and in the alternative sought a referral to the CJEU.

Question

Should an appeal be given suspensive effect where the infringement decision is criticised on several grounds and the EPO has since revoked the patent in opposition?

Decision

The Court recalls that suspensive effect is exceptional, available in particular where the decision is manifestly erroneous, where enforcement would render the appeal largely pointless, or where a fundamental procedural principle was breached and a different outcome cannot be ruled out. None of these situations is made out.

The Local Division did not go beyond the claim in accepting that the request queue may be maintained by the browser. The subject matter is defined by the requests and the facts relied on in support, and DivX argued that Netflix’s software, together with the browser, enables the computer to carry out the method. The handing over of requests to the browser, put forward by Netflix itself and not disputed, had to be taken into account (Rule 171.2). Nor was there a surprise decision.

For the other platforms, DivX’s assertion that the software versions are identical in the relevant functions could be treated as undisputed in the absence of challenge, a general denial having been sufficient. This is not a disguised fishing expedition. The order of steps adopted in construing the claim is not manifestly wrong, nor is the refusal of confidentiality measures, since Netflix did not specify which information required protection beyond the redaction already provided for.

On the conflict with the EPO, the Court follows Meril v Edwards. A stay in view of opposition proceedings is discretionary and, under Rule 118.2(b), must be ordered of the Court’s own motion only where final revocation in the near future is highly likely. Netflix had not sought a stay and the Local Division had considered and rejected the EPO’s preliminary opinion. The revocation, on the same grounds, therefore does not in itself justify suspensive effect. Article 47 of the Charter also protects the patentee and EU law gives no precedence to the EPO decision, so the referral is refused. With the parties’ consent, English becomes the language of the appeal proceedings.

Key points for practice

• Revocation by the Opposition Division after an infringement decision does not suffice to suspend its enforcement where the Local Division had already considered and rejected the EPO’s preliminary opinion.
• A defendant concerned about a conflict with the opposition must seek a stay at first instance, the Court being bound to order it of its own motion only where final revocation in the near future is highly likely.
• Faced with an allegation that product variants are identical, even a general denial suffices, failing which the fact is treated as undisputed.
• Confidentiality requests concerning the right of information must be made during the merits proceedings and must identify precisely the information to be protected.

Provisions applied

UPC Agreement

Articles 33(10), 74(1) and 76(1) and (2)

Rules of Procedure

Rules 118.2(b), 171.2, 223, 262A, 266 and 295(a)

EU Charter of Fundamental Rights

Article 47

Case law cited

Meril v Edwards (Court of Appeal, UPC_CoA_511/2024, 21 November 2024), Belkin v Philips (Court of Appeal, UPC_CoA_534/2024, 3 October 2025), Alexion v Samsung (Court of Appeal, UPC_CoA_402/2024, 19 June 2025), Hartmann International Industries (CJEU, C-175/21, 17 November 2022).

Related decisions

• Munich Local Division, 15 September 2026, DivX v Netflix: decision on the merits under appeal

Prepared by Dhenne Avocats from the official decision, consulted on 4 November 2026. The database is updated every week, on Friday. Only the official text is authoritative.