Advanced Bionics v MED-EL Elektromedizinische Geräte Gesellschaft m.b.H. (CoA, ORD_42780/2024, 5 September 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 5 September 2024 (UPC_CoA_106/2024, APL_12739/2024), the Court of Appeal (K. Grabinski, presiding, P. Blok, rapporteur, E. Germano) dismissed Advanced Bionics’ appeal against the Mannheim Local Division’s order of 22 February 2024 refusing to transfer to the Central Division, for joint hearing with the revocation action filed on 27 September 2023, the infringement action on EP 4 074 373 brought by MED-EL on 2 November 2023. The order lays down two principles on the allocation of cases between divisions.

Question

Does joinder for connection under Rule 340 RoP, or Art. 33 UPCA, allow an infringement action to be transferred from a local division to the Central Division without the parties’ consent?

Decision

No. Rule 340 RoP cannot lead to a transfer outside the cases provided for in Art. 33 UPCA, which prevails over the Rules of Procedure under Art. 41(1) UPCA and Rule 1.1 RoP, Rule 340 itself requiring Art. 33 to be observed (paragraph 8). Art. 33(3)(c) UPCA allows an infringement action together with a counterclaim for revocation to be referred only with the parties’ agreement, and Art. 33(5) read with Art. 33(3) does not allow a transfer without consent either (paragraph 9). As MED-EL expressly objected, transfer was ruled out (paragraph 10). The risk of divergent claim construction does not alter this: the revocation action, which is further advanced, is likely to be decided first, the Mannheim panel can take it into account, and the defendants can draw its attention to the construction advanced by MED-EL before the Central Division (paragraph 11).

Key points for practice

• Practical point: a defendant that first brings a revocation action before the Central Division cannot force the patentee to have the infringement action heard there too, consistency is secured by taking account of whichever decision comes first.

Provisions applied

Agreement on a Unified Patent Court

Arts. 33(3) and (5) and 41(1)

Rules of Procedure

Rules 1.1 and 340

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.