In(k)control v Esko-Software (CFI, 27 April 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In an order of 27 April 2026 (UPC_CFI_871/2026), the President of the Court of First Instance dismisses the application by Esko-Software and Esko-Graphics to change the language of the infringement action brought against them by In(k)control before the Brussels Local Division from Dutch to English, the language of grant of EP 3 841 735. The use of English in the sector does not outweigh the claimant’s small size and the fact that all parties are based in the Dutch-speaking region.

Question

Does fairness under Article 49(5) UPCA require a switch to the language of grant where English dominates the sector but the claimant is a small enterprise based, like the defendants, in the Dutch-speaking region?

Decision

The reply filed without leave is disregarded, as Rule 323.2 RoP does not provide for it. The application is admissible: it may be filed before the statement of defence, and Rule 19.2(a) does not apply to the Rule 323 procedure. On the merits, the President applies the Court of Appeal’s criteria (language of the technology, nationality, domicile and size of the parties, effect on each) and accepts that English is the common language of the field. That advantage nevertheless yields to the claimant’s status as a small enterprise, established by its declaration under Rule 370.8(a), facing an international group, and to all parties being domiciled in the Dutch-speaking region, the defendants showing no significant disadvantage in litigating in Dutch.

Key points for practice

• Practical point: the language of grant and the sector’s use of English are not enough where the parties share the language of the proceedings and the claimant is a small enterprise, the Rule 370.8(a) declaration carries weight.

Provisions applied

Agreement on a Unified Patent Court

Arts 49(1), (2) and (5), and 73(2)(a)

Rules of Procedure

Rules 14, 19, 220, 321 to 324 and 370.8

Case law cited

UPC_CFI_375/2023, 5 March 2024, Advanced Bionics v Med-El, Court of Appeal, 5 September 2024, UPC_CFI_583/2024, Paris Local Division, 9 January 2025, Curio Bioscience v 10x Genomics, Court of Appeal, 17 April 2024, UPC_CoA_354/2024, Court of Appeal, 18 September 2024, UPC_CFI_448/2025, 3 July 2025, Skechers USA Deutschland, 29 October 2025 (UPC_CFI_743/2025), UERAN v Xiaomi, Court of Appeal, 19 December 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.