LS 9 v Bellissa HAAS (CFI, 19 August 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In a decision of 19 August 2026 (UPC_CFI_860/2025), the Milan Central Division rules on LS9 GmbH’s revocation action against Bellissa HAAS GmbH’s EP 2 223 589 (a bed edging with a lockable sheet-metal strip), limited to Germany, Austria and Luxembourg. The action is admissible and partly well founded: claim 1 as granted lacks novelty over D1, but auxiliary request 1 is novel and inventive (paragraph 71). The patent is maintained in the form of auxiliary request 1 for Germany, Austria and Luxembourg. Each party bears its own costs, court fees being split equally, and the value in dispute is set at EUR 1,500,000.

For practitioners, the main interest lies in admissibility: no lis pendens with a parallel counterclaim based on different prior art, a broad reading of standing under Art. 47(6) UPCA, and dismissal of the straw man objection. The decision also confirms that new prior art filed with the reply, even in response to a request to amend, is admitted only through an amendment of the claim justified under Rule 263 RoP.

Facts and procedure

EP 2 223 589 is already the subject of an infringement action before the Mannheim Local Division, in which the counterclaim for revocation was dismissed on 12 September 2025, a decision now under appeal (UPC_CoA_894/2025). LS9 brought its action before the Milan section on 11 September 2025, relying on different prior art (D1, US 2,821,809). Its representative, a former managing director, holds 40% of its shares. At the hearing of 9 July 2026, the defendant asked for a decision by default (paragraph 15). It sought maintenance of the patent as granted or in one of 31 auxiliary requests.

The applicable law

The panel considers the bar on representation in Art. 48 UPCA, the competence of the central division (Art. 33(4) UPCA and Rule 19.7 RoP), lis pendens, standing under Art. 47(6) UPCA, and novelty under Art. 54 EPC.

Question

Is a revocation action admissible where a counterclaim against the same patent is pending on appeal and the claimant is said to act as a straw man, and is claim 1 novel over D1?

Decision

No default decision is given, as the claimant appeared through its representative, whose 40% shareholding is not a significant stake barring representation, assessed under German company law (paragraphs 22 to 35). The Milan section’s competence is deemed accepted, no objection having been raised within the Rule 19 RoP period (paragraphs 37 and 38).

The subject matter of a revocation action is defined by the prior art and arguments relied on, not merely by the grounds in Art. 138(1) EPC: as it differs from the Mannheim proceedings, there is no lis pendens (paragraphs 45 to 56). Standing is read broadly, a legal person being in principle concerned (paragraphs 57 to 61). The straw man objection fails, the panel leaving open whether such actions are prohibited in general (paragraphs 62 to 70).

On the merits, claim 1 as granted is fully disclosed by D1 (paragraphs 93 to 123), whereas auxiliary request 1 is novel over D1 and over exhibits K7 to K11, which may not be combined and whose prior public use is not proven (paragraphs 126 to 160). D6, D7 and D8, filed only with the reply, are not considered: a revocation claimant must substantiate its attacks on each claim in the statement of claim, including dependent claims that may become auxiliary requests, and the reply to a request to amend does not allow new prior art to be introduced without leave under Rule 263 RoP, which requires an explanation of why it was not filed earlier (Rules 25.1 and 44 RoP, paragraphs 161 to 174). Inventive step of auxiliary request 1 was upheld under the Court of Appeal’s approach: the attack based on K7 and common general knowledge was unsubstantiated for the features of the granted claim that K7 does not disclose, and knowing that any metal sheet can be bent does not suggest a tongue designed to be bent by hand where it joins the strip, D1, which recommends heavy gauge metal, leads the skilled person away from such flexibility, and the attacks made in the reply were late in any event (paragraphs 175 to 209). As each side partly succeeded, each bears its own costs and court fees are shared (Art. 69(2) UPCA, paragraphs 210 and 211). The value in dispute follows that of the parallel proceedings, EUR 1,500,000, there being no information justifying an uplift for a standalone revocation action (paragraphs 212 to 214).

Key points for practice

• Two revocation attacks on the same patent do not share the same subject matter where they rely on different prior art (paragraphs 46 and 56).
• New prior art relied on in the reply, even against an auxiliary request taking up a dependent claim, is an amendment of the claim that must be justified under Rule 263 RoP (paragraphs 163 to 169).
• A straw man objection requires serious indications that the claimant has no interest of its own (paragraphs 63 to 69).
• Practical point: a document published after the priority date cannot fill the gaps in an earlier one, even under the same article number (paragraphs 146 to 149).

Provisions applied

Agreement on a Unified Patent Court

Arts 24(1)(e), 31, 33(4), 47(5) and (6), 48(1) and (2), 65(1), 69(1) and (2) and 76(1) and (2)

Rules of Procedure

Rules 19.1(b), 19.7, 25.1, 44, 116.3, 263, 355.1 and 362

European Patent Convention

Art. 54(1) and (2), 56, 114 and 138(1)

Regulation (EU) No 1215/2012

Arts 24(4), 29, 71a and 71b

Case law cited

Suinno v Microsoft, Court of Appeal, 11 February 2025, Mala v Nokia, Court of Appeal, 17 September 2024, Occlutech v Lepu Medical, Court of Appeal, 18 June 2026, Bellissa Haas v Windhager, Mannheim Local Division, 12 September 2025, Fujifilm v Kodak, Court of Appeal, 13 July 2026 (UPC_CoA_473/2025), VMR v NJOY, Court of Appeal, 29 December 2025, Hefei v Grundfos, Court of Appeal, 26 May 2026 (UPC_CoA_622/2025 and UPC_CoA_623/2025), Grundfos v Hefei, Düsseldorf Local Division, 8 May 2025, NanoString v 10x Genomics, Court of Appeal, 26 February 2024, Meril v Edwards, Court of Appeal, 25 November 2025, Amgen v Sanofi, Court of Appeal, 25 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.