Malikie Innovations v Nintendo (CFI, UPC_CFI_555/2024, 28 October 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By an order of 28 October 2025 (UPC_CFI_555/2024), issued after the interim conference of 22 October 2025, the judge-rapporteur of the Hamburg Local Division ruled on the admissibility of a series of documents and arguments in Malikie Innovations’ infringement action against Nintendo (EP 2 448 225) and the counterclaim for revocation. He admitted the patent sale and assignment agreements, the changes to the claim, new prior art and new inventive step attacks. The order is a useful guide to the timetable within which the Hamburg division expects validity arguments to be raised.

Question

Up to what stage of the written procedure may the parties introduce new documents and new validity attacks?

Decision

Front-loading does not require everything to be filed in the first brief: a registered proprietor need not prove its standing further in the statement of claim, and the effect of the agreements produced is a matter for the merits (paragraph 5). Leave to limit a claim unconditionally must be granted under Rule 263.3 (paragraph 6). New prior art responding to the amended requests is a reasonable reaction (paragraph 8). Under the division’s case law, new grounds or starting points may not be raised for the first time at the oral hearing and must come at the latest in the rejoinder on the counterclaim (paragraph 12), the same applies to amendments of the patent, which the proprietor must justify from the outset under Arts 84 and 123(2) EPC (paragraph 13). Each side may answer the contested passages in writing (paragraphs 18 to 21). The admissibility of the conditions attached to the auxiliary requests was referred to the panel.

Key points for practice

• In Hamburg, validity attacks must be raised at the latest in the rejoinder on the counterclaim. New combinations based on documents already on file remain admissible in reply to an application to amend the patent (paragraph 19).

Provisions applied

Rules of Procedure

Rules 7.1, 7.2, 30.1, 30.2, 105.5, 171.1, 175.1 and 263

European Patent Convention

Art. 84, Art. 123(2)

Case law cited

Belkin v Koninklijke Philips, Court of Appeal, 3 October 2025 (UPC_CoA_534/2024), AGFA v Gucci, Hamburg Local Division, 30 April 2025, Düsseldorf Local Division, 7 March 2025 (UPC_CFI_459/2023), Paris Central Division, 27 November 2024 (UPC_CFI_308/2023)

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.