DivX v Netflix Services Germany (CFI, 15 September 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By decision of 15 September 2026, given in the infringement action UPC_CFI_465/2025 and the counterclaim for revocation UPC_CFI_1121/2025, the Munich Local Division held the Netflix companies’ counterclaim unfounded and DivX’s infringement action well founded (paragraph 71). The dispute concerns the European patent with unitary effect EP 4 213 033 on progressive playback of media sequences, asserted for indirect infringement of claim 1 by Netflix’s software, including its « Cadmium » player. The Division construed the patent broadly (request queue, mask), rejected added matter, lack of novelty and lack of inventive step, and granted an injunction for eighteen States, information, rendering of accounts and liability for damages, without security for enforcement. It also clarifies the handling of late submissions and how a preliminary opinion of the EPO opposition division is taken into account.

Facts and procedure

DivX sought, for eighteen States, an injunction against supplying and offering software for carrying out the claimed method, information, rendering of accounts and a declaration of liability for damages from 7 May 2025 (paragraph 10). The defendants sought dismissal and, in the alternative, security for enforcement, and counterclaimed for revocation of the patent in its entirety (paragraphs 11 and 12). DivX filed auxiliary requests to amend the patent, withdrew one of them on 8 July 2026 and, at the oral hearing on 21 July 2026, dropped its infringement requests based on amended claims (paragraphs 13 to 17). An EPO opposition division had issued a preliminary opinion on 3 July 2026 (paragraphs 68 to 70).

The applicable law

The division applied Rules 9.2 and 36 RoP, which give it discretion to admit late submissions, balancing the front-loaded written procedure against fairness and the right to be heard (paragraphs 72 to 74). The auxiliary requests fall under Art. 65 UPCA and Rule 30.1 RoP.

Question

Which late submissions should be admitted, and how should the opposition division’s preliminary opinion be taken into account? Is the patent valid and infringed by Netflix’s software?

Decision

The passages of the defendants’ rejoinder on flushing the request queue and DivX’s response were admitted, as were those answering the reply on the application to amend, since these points were narrow, caused no delay and could be answered. The remainder of the rejoinder of 9 April 2026 was excluded because it addressed features outside the auxiliary requests and could have been raised earlier (paragraphs 75 to 77). DivX’s submissions on the EPO’s opinion were admitted so that the division and the EPO would decide on the same basis and divergent outcomes would be avoided (paragraph 78). The skilled person is a systems engineer with a degree in media technology and experience in streaming (paragraphs 87 and 88). Claim 1 concerns progressive playback of time-based media, trick-play functions being the purpose of the patent (paragraphs 90 to 95). The request queue may consist of requests created but not yet sent, with no particular hardware implementation. It need not be flushed on every user instruction. The mask is any data structure separate from the downloaded data, not necessarily a bitmap, and may work with time ranges (paragraphs 109 to 141).

The counterclaim was dismissed (paragraph 142). Added matter was rejected: taking a feature of an embodiment in isolation is allowed where the omitted feature is not needed to achieve the purpose (paragraphs 143 to 154). The D10 article, which concerns displaying sections of a panoramic image, does not disclose progressive playback of a media sequence and is not a realistic starting point (paragraphs 155 to 181). Starting from D1, a realistic starting point, the skilled person had no reason to use index-based byte-range requests and, above all, no reason to flush the queue on a user instruction. The EPO’s preliminary opinion, which does not address that motivation, does not alter this, and the combinations with D9, D11, D2 and D3 also fail (paragraphs 182 to 265). The auxiliary requests were not examined (paragraph 266).

Indirect infringement of claim 1 was found (Art. 26(1) UPCA): the software, including the « Cadmium » player, is suitable for carrying out every step of the method, the queue may be kept by the browser, and software as an intangible means falls within Art. 26, the showing made on the browser version holds for all platforms absent a specific denial (paragraphs 267 to 322). The injunction is unrestricted, as no non-infringing use is possible and warnings to users would not suffice (paragraph 324). The right to information extends to third parties in the distribution chain, the Art. 26 means being an infringing product within Art. 67, but only to persons acting commercially. No confidentiality measures were ordered in the absence of a Rule 262A RoP application (paragraphs 325 to 335). Penalty payments were set at no less than EUR 5,000 per day for the injunction and EUR 250 per day for information, the minimums sought being too high (paragraphs 337 to 342). The defendants bear the costs, the parties having agreed on reimbursement of EUR 200,000 per proceeding (paragraph 343). No security for enforcement was ordered: turnover estimates from credit agencies say nothing about DivX’s solvency, and the patent expires in less than eighteen months (paragraphs 344 to 351). The value in dispute was set at EUR 2,500,000 for the action and EUR 3,750,000 for the counterclaim (paragraph 352).

Key points for practice

• Whether a late submission is admitted depends on how narrow it is and whether it can be answered. An argument that could have been made in an earlier pleading is excluded.
• A preliminary opinion of an EPO opposition division issued during the proceedings may be admitted, without binding the division (paragraphs 78 and 227).
• Software supplied to users is a means within Art. 26 UPCA, and the right to information under Art. 67 covers the distribution chain of that means (paragraphs 320 and 327).
• Practical point: a patentee who drops its infringement case on amended claims at the hearing stakes the dispute on the patent as granted, with the risk that entails.

Provisions applied

Agreement on a Unified Patent Court

Arts 26(1), 27(a), 63, 65, 67(1), 68, 69(1) and 82

Rules of Procedure

Rules 9.2, 30.1, 32.3, 36, 55, 118.5, 118.8, 190.1, 191, 262A, 352.1, 354.3 and 354.4

European Patent Convention

Arts 54, 56, 123(2) and 138(1)(a) and (c)

Directive 2004/48/EC

Art. 8

Case law cited

NST v Audi, Court of Appeal, 18 September 2024, Headwater v Motorola, Munich Local Division, 20 June 2025, Otec v Steros, Court of Appeal, 24 June 2025, Meril v Edwards, Court of Appeal, 25 November 2025, Amgen v Sanofi, Court of Appeal, 25 November 2025, Abbott v Sibio, Court of Appeal, 14 February 2025 (UPC_CoA_382/2024), expert e-Commerce v Seoul Viosys, Court of Appeal, 2 October 2025, NanoString v 10x Genomics, Court of Appeal, 26 February 2024, Mammut v Ortovox, Court of Appeal, 25 September 2024, Fujifilm v Kodak, Court of Appeal, 14 October 2025, Yellow Sphere v Knaus Tabbert, Court of Appeal, 21 May 2025 (UPC_CoA_365/2025), Brita v Aquashield, Munich Local Division, 22 August 2025 (UPC_CFI_248/2024), Panasonic v OPPO, Mannheim Local Division, 22 November 2024, Kaldewei v Bette, Düsseldorf Local Division, 3 July 2024, Dolle v Fakro, Hamburg Local Division, 5 November 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.