BFexaQC v NVIDIA (CFI, UPC_CFI_180/2025, 11 March 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In a decision of 11 March 2026, given in the infringement action (UPC_CFI_180/2025) and the joined counterclaim for revocation (UPC_CFI_210/2025), the Munich Local Division held admissible but unfounded the action brought by BFexaQC and ParTec against NVIDIA Corporation and NVIDIA GmbH on unitary patent EP 3 743 812 (dynamic allocation of tasks between computation nodes and booster nodes), directed at the DGX systems with the Run:ai software (paragraph 92). The counterclaim, brought on condition that the action succeed, did not need to be decided (paragraph 77). The headnotes are of practical interest on the use of the applicant’s statements during grant and on conditional counterclaims.

Facts and procedure

ParTec is the registered proprietor of the patent, whose unitary effect was registered on 6 September 2023, BFexaQC relies on an exclusive licence and a sublicence. The claimants first pleaded indirect infringement. Adding direct infringement in the reply was refused by order of 15 January 2026. NVIDIA challenged standing, arguing that the licences were sham or self-dealing transactions, and counterclaimed for revocation, to which the claimants responded with six auxiliary requests. The oral hearing took place on 13 February 2026.

The applicable law

Standing of the proprietor and the exclusive licensee is governed by Art. 47 UPCA, the validity of the licences is assessed under German law (Sections 117 and 181 of the German Civil Code). Claims are construed under Art. 69 EPC and its Protocol. Amendment of the claim is governed by Rule 263 RoP.

Question

Do the claimants have standing, how should the notions of computation task and iteration in claim 1 be construed, and does NVIDIA’s DGX system embody the invention?

Decision

The Division accepted ParTec’s standing as proprietor and BFexaQC’s as exclusive licensee, and rejected the objections that the licences were sham or self-dealing (paragraphs 78 to 91). According to the headnotes, the applicant’s statements during grant are not interpretation material under Art. 69(1) EPC and do not bind the court, but may indicate the skilled person’s understanding at the priority date, in line with the Alexion v Samsung Bioepis order. A claimant adopting the defendant’s technical description of the product does not amend its claim within Rule 263 RoP.

A computation task is an application-type task, not a mere data set (paragraphs 108 to 111). Iteration means the repeated execution of the same computing instructions, in line with its ordinary meaning, the description and the function of the invention. The claimants’ reading, which treated it as a first complete distribution or a checkpoint during the computation, was rejected (paragraphs 112 to 119). The further distribution under feature 4 must be based on information about the processing of the sub-tasks themselves, not merely on the status of the nodes (load, availability) or on properties set in advance by the user, the applicant’s statement before the EPO confirming that reading (paragraphs 129 to 143).

The DGX system, with or without pre-installed Run:ai software, is not suitable for carrying out the method: the scheduler’s reallocation of resources (« elasticity », « fairshare », preemptible workloads, priorities, inference replicas) depends on resource availability rather than on the processing of the pods, and distribution in scheduling cycles does not correspond to iterations within the meaning of the patent (paragraphs 144 to 181). The claimants’ adjusted submissions on customers installing the software do not amend the claim (paragraphs 147 to 152). The counterclaim, made subject to the condition subsequent that the action fail, need not be decided, the claimants having no legal interest in obtaining a dismissal for use in negotiations (paragraphs 182 to 185). The order dismisses the action, leaves each party to bear its own costs in accordance with their agreement, and sets the value of the action at EUR 1,500,000 and that of the counterclaim at EUR 2,250,000 (paragraph 186).

Key points for practice

• The applicant’s statements before the EPO do not bind the UPC but may shed light on the skilled person’s understanding.
• A counterclaim for revocation may be made conditional on the action succeeding. If there is no infringement, it is not decided (paragraph 77).
• An intra-group licence does not deprive the exclusive licensee of standing where the sham objections are not made out (paragraphs 78 to 91).
• Practical point: a defendant denying infringement may make its counterclaim conditional on that defence failing, and so avoid a validity ruling if non-infringement is found.

Provisions applied

Agreement on a Unified Patent Court

Arts 26(1), 36, 47 and 69

Rules of Procedure

Rules 9.2, 25.1, 118.8, 119, 263, 265, 352 and 360

European Patent Convention

Art. 69(1) and Protocol on its interpretation

Other texts

German Civil Code (BGB), Sections 117(1) and 181

Case law cited

Alexion v Samsung Bioepis, Court of Appeal, 20 December 2024, NanoString v 10x Genomics, Court of Appeal, 26 February 2024, VusionGroup v Hanshow, Court of Appeal, 13 May 2024

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.