biolitec Holding v Light Guide Optics Germany (CFI, 12 February 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By a decision of 12 February 2025 (UPC_CFI_714/2024), Tobias Pichlmaier, judge rapporteur in the Munich Local Division, rejected the preliminary objection raised by Light Guide Optics Germany GmbH and S.I.A. LIGHTGUIDE International, sued by biolitec Holding GmbH & Co. KG for infringement of EP 3 685 783. The defendants argued that the Düsseldorf Local Division, previously seised of an application for provisional measures, alone had jurisdiction under Art. 33(2) UPCA. The decision clarifies when proceedings are ‘pending’ before a division within the meaning of that provision.

Question

Does an application for provisional measures dismissed at first instance and under appeal prevent another local division from being seised of the main action under Art. 33(2) UPCA?

Decision

The Düsseldorf Local Division had dismissed the application for provisional measures on 5 September 2024, the appeal, lodged on 19 September 2024, was pending when the action was brought in Munich on 20 November 2024. The judge held that Art. 33(2) bars a further action only where a related action is pending before a division of the Court of First Instance. Since a case cannot be pending at first instance and on appeal at the same time, the Düsseldorf proceedings were no longer pending before that division, so nothing prevented Munich from being seised, the purpose of the provision being to prevent two divisions from hearing the same matter at once. On service, there being no authorisation to accept service under Rule 271.1(c), the judge recorded, in line with the defendants’ position, that the action was served on 2 December 2024.

Key points for practice

• Provisional measures proceedings pending on appeal are no longer pending before the first-instance division for the purposes of Art. 33(2): the claimant may bring the main action before another division.
• Where there is no authorisation to accept service, the relevant date is the date of actual access to the case management system.

Provisions applied

Agreement on a Unified Patent Court

Arts 32(1) and 33(2)

Rules of Procedure

Rules 76.2, 220.2, 271.1(c) and 346.1

Case law cited

No UPC decision is cited, apart from the Düsseldorf Local Division order of 5 September 2024 (UPC_CFI_486/2024) and the pending appeal (UPC_CoA_540/2024).

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.