N.V. Nutricia v Nestlé Health Science (Deutschland) (CFI, 19 December 2023)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By procedural order of 19 December 2023 (UPC_CFI_201/2023, ORD_589338/2023, ACT_544303/2023), the Düsseldorf Local Division (Judges Thomas, presiding, Thom and Agergaard, and Hedberg, technically qualified judge), in N.V. Nutricia’s infringement action on EP 2 359 858 against Nestlé Health Science (Deutschland) GmbH, decided to hear the infringement action and the counterclaim for revocation together. The Article 33(3) UPCA option was exercised before the written procedure closed, the parties having raised no objection.

Question

May the local division decide, before the written procedure has closed, to hear the counterclaim for revocation itself rather than refer it to the central division?

Decision

The Article 33(3) UPCA question may be decided before the closure of the written procedure: the court is still being built up and some panel members sit part-time or case by case, so an early decision, like the prompt allocation of a technically qualified judge, serves efficient case management and avoids timetable delays. The technically qualified judge having already been appointed following an application under Rule 33 RoP, the panel, experienced in patent law and with technical expertise in the field, can decide validity and infringement. Hearing both together is efficient and allows a uniform construction of the patent by the same panel. The division will therefore proceed with both the infringement action and the counterclaim for revocation (Art. 33(3)(a) UPCA).

Key points for practice

• Practical point: early appointment of a technically qualified judge (Rule 33 RoP) favours an early exercise of the Article 33(3) option in favour of a joint hearing, a party seeking bifurcation should say so at the first exchanges.

Provisions applied

Agreement on a Unified Patent Court

Art. 33(3)(a)

Rules of Procedure

Rules 33 and 37.1

Related decisions

• Nutricia v Nestlé Health Science, 22 September 2023, earlier order on the application for a technically qualified judge (Rule 33 RoP).

Prepared by Dhenne Avocats from the official decision, consulted on 10 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.