Labrador Diagnostics v bioMérieux (CFI, 23 April 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By procedural order of 23 April 2025 (UPC_CFI_315/2024 and UPC_CFI_571/2024, ORD_19201/2025), the Düsseldorf Local Division (Judges Thomas, presiding, Thom, judge-rapporteur, Bessaud and Abello, technically qualified judge) referred to the Milan Central Division the counterclaim for revocation of EP 3 756 767 brought by six bioMérieux companies against Labrador Diagnostics, together with the application to amend the patent, and proceeded with the infringement action without staying it. As a revocation action was already pending in Milan, Labrador had sought the referral, and the defendants did not object.

Question

Should the local division, under Art. 33(3) UPCA, refer the counterclaim for revocation to the central division already seised of a revocation action, and if so stay the infringement action?

Decision

The division set out the three options under Art. 33(3): hearing both claims, referring the counterclaim while staying or proceeding with the infringement action, or referring the whole case with the parties’ agreement. Since the defendants did not object, the request was treated as unanimous, which normally leads to its being granted absent strong counterarguments. There were none, and referral was justified mainly on grounds of efficiency. It covers the counterclaim of all counterclaimants and the application to amend. A stay was refused for now: deciding whether invalidity is highly likely would require a detailed review of the whole file, which would not be efficient at this point, the division reserved the right to revisit the matter.

Key points for practice

• Practical point: a defendant that does not object to a request for referral under Art. 33(3)(b) should expect it to be treated as a joint request. A stay of the infringement action can still be argued later.

Provisions applied

Agreement on a Unified Patent Court

Art. 33(3)

Rules of Procedure

Rules 37.2 and 37.4

Case law cited

Amgen v Sanofi, Munich Local Division, 2 February 2024, GlaxoSmithKline v Pfizer, Düsseldorf Local Division, 4 March 2025

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.