Amgen v Sanofi-Aventis Deutschland (CFI, 24 August 2023)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 24 August 2023 (UPC_CFI_1/2023, ACT_459505/2023), the judge-rapporteur of the Munich section of the Central Division rejected Amgen’s preliminary objection to Sanofi’s revocation action against EP 3 666 797. On 1 June 2023, with the CMS out of service, Sanofi had lodged its Statement for revocation in hard copy at the Luxembourg Registry at 11.26, and Amgen its infringement action at the Munich Local Division sub-registry at 11.45. The order, which grants leave to appeal of the Court’s own motion, settles to the minute the priority required by Art. 33(4) UPCA.

Question

Does the Central Division remain competent where an infringement action between the same parties on the same patent is brought before a local division on the same day, a few minutes after the revocation action?

Decision

« Bringing an action » means the objective act of lodging the statement, the requirements of Rule 13 RoP not being a precondition, since Art. 33(4) UPCA lays down no further requirement (paragraphs 4.22 and 4.23), any arbitrary assignment after an action is brought must be ruled out (paragraph 4.19). Priority is determined by the exact date and time of lodging (paragraph 4.26). Rule 4.2 RoP offers a choice between the Registry, at the seat of the Court of Appeal in Luxembourg, and a sub-registry, Amgen’s narrower reading being rejected (paragraphs 4.39 to 4.43), the Registry Rules cannot override the Rules of Procedure (paragraphs 4.49 to 4.51). The outcome is fair, as a party should not be disadvantaged merely by its geographical location (paragraph 4.52). As no infringement action was pending at 11.26, the Central Division is competent (paragraph 4.53). The costs request was rejected (paragraph 4.55).

Key points for practice

• Practical point: in a race between revocation and infringement, the exact time of lodging is decisive, the Luxembourg Registry is a valid place of filing, including when the CMS is down.

Provisions applied

Agreement on a Unified Patent Court

Arts. 10, 32(1), 33(2) to (4), 73(2)(b)(ii) and 83(3), Statute, Arts. 23, 24 and 25

Rules of Procedure

Rules 4.1, 4.2, 13, 16, 17, 19.1(b), 20.2, 21.1, 49, 220.2 and 224.1(b)

Regulation 1215/2012

Arts. 24(4), 31, 71a and 71b

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.