Merz Pharmaceuticals v Viatris Santé (CoA, 27 April 2026)
| Date | 27 April 2026 |
|---|---|
| Court | CoA |
| Division | Luxembourg (LU) |
| Type of action | Appeal RoP220.1 |
| Case number(s) | UPC_CoA_917/2025 |
| Registry reference | UPC-COA-0000917/2025 |
| Parties | Merz Pharmaceuticals LLC, Merz Therapeutics GmbH, Merz Pharma France v. Viatris Santé |
Official decision (PDF) · UPC registry entry
Dhenne Avocats represents claimants and defendants in European patent disputes before the Unified Patent Court, including the Paris divisions.
Dhenne Avocats · 10 October 2026
Our analysis
Summary
By order of 27 April 2026 (UPC_CoA_917/2025), the Court of Appeal sets aside the Paris Local Division order of 21 November 2025, which had refused Merz’s application for provisional measures as out of time, and prohibits Viatris Santé, in France and until 25 July 2026 inclusive, from marketing its generic FAMPRIDINE VIATRIS LP 10 mg, which falls within French supplementary protection certificate No. 13C0033 (fampridine, FAMPYRA®). The main contribution concerns the starting point of the Rule 211.4 period in generics cases: a marketing authorisation does not amount to an imminent infringement, whereas completion of the national pricing and reimbursement procedures may (paragraph 53). The order also clarifies the consequences of dropping an invalidity defence during the proceedings.
Facts and procedure
Merz Pharmaceuticals LLC, owner of patent EP 2 377 536 and of the certificate, Merz Therapeutics GmbH, exclusive licensee, and Merz Pharma France, exclusive sub-licensee in France, applied to the Paris Local Division on 31 July 2025 after Viatris launched its generic in June 2025. The division held that Merz knew or should have known of the imminent infringement from 2 January 2025, when it recovered direct exploitation rights in France, and refused the application (paragraphs 8 and 9). On appeal, Viatris withdrew its invalidity arguments against the patent and the certificate on 13 April 2026 (paragraph 15). Hearings took place on 5 February 2026 on urgency and on 16 April 2026 on the remaining issues.
The applicable law
Rule 211.4 allows provisional measures to be refused where the applicant has delayed unreasonably. Article 62(2) UPCA requires the interests of the parties to be weighed, and Rule 211.3 calls for an assessment of necessity and proportionality. The certificate confers the same rights as the patent (Articles 25(a) and 30 UPCA). Under Article 76(2) UPCA, the parties submit the grounds, facts and evidence.
Question
When does the period within which a right holder must act against a generic start to run, and are provisional measures still proportionate three months before the certificate expires?
Decision
Time runs from when the applicant has, or should have had with due diligence, the necessary facts and evidence (paragraph 49). The evidence shows a strong likelihood that the CEPS notification of 9 October 2024 went no further than Acorda’s counsel, so Merz could not have learned of it (paragraphs 62 and 63). The price listing of 22 November 2024 did not lead one to expect a launch within six months, since Article 3 of the LEEM-CEPS framework agreement does not require one (paragraphs 68 to 73). Merz, aware from 2 July 2025, acted without unreasonable delay (paragraph 75). With the invalidity defence withdrawn and infringement undisputed, only urgency and proportionality remained in issue (paragraph 18). Irreparable harm is not a necessary condition and patients’ interests may be taken into account (paragraphs 86 and 88), the supply shortages relied on do not justify a refusal (paragraphs 91 to 96), and the short remaining term of the certificate does not stand in the way of an injunction (paragraph 101). The Court also orders delivery up to a bailiff, with penalties of up to EUR 100,000 and EUR 50,000 per day, refuses a guarantee that would allow continued marketing and requires no security from Merz (paragraphs 107 to 110). Viatris bears the costs of both instances, with an interim award of EUR 56,000.
Key points for practice
- The grant of a marketing authorisation to the generic company does not by itself start the Rule 211.4 period, completion of the pricing and reimbursement procedures may (paragraph 53).
- Dropping an invalidity defence is neither a change of claim (Rule 263) nor a withdrawal (Rule 265), the Court decides what remains in issue and may order the party to bear the costs caused (paragraph 17).
- Irreparable harm is not required: direct competition from a generic may justify measures preserving the prior status quo (paragraphs 86 and 87).
- Practical point: the right holder must be able to prove when it learned of the launch, and a defendant relying on earlier knowledge, for instance through the CEPS, must prove that the information was actually passed on (paragraphs 62 and 63).
Provisions applied
- Agreement on a Unified Patent Court
- Arts. 25(a), 30, 62(2) and (3), 69(1) and 76(2)
- Rules of Procedure
- Rules 206.2(d), 211.3, 211.4, 213.1, 222.2, 263 and 265
- Case law cited
- Boehringer Ingelheim v Zentiva, Court of Appeal, 13 August 2025 (UPC_CoA_446/2025 and 520/2025), on when time starts to run, Mammut v Ortovox, Court of Appeal, 25 September 2024 (UPC_CoA_182/2024), Biolitec v Light Guide, Court of Appeal, 24 February 2025 (UPC_CoA_540/2024), Sumi v Syngenta, Court of Appeal, 3 March 2025 (UPC_CoA_523/2024), Insulet v EOFlow, Court of Appeal, 30 April 2025 (UPC_CoA_768/2024), Meril v Edwards, Court of Appeal, 25 November 2025 (UPC_CoA_464/2024), on costs.
Related decisions
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.
Decisions in the same proceedings
Going further
Lexicon: UPC Court of Appeal, Supplementary protection certificate (SPC), Biosimilar medicinal product, Launch at risk.
Dhenne Avocats blog: UPC Appeals: What the Numbers Show, Pharmaceutical patents and the UPC: is the Court hostile to them?.
Publications by Matthieu Dhenne: The Launch Letter: How Generics and Biosimilars Should Write to Avoid UPC Urgency (Kluwer Patent Blog).
Source and translations
- Official source
- Unified Patent Court registry link recorded in the record
- Original language
- not recorded
- Translation available
- no translation recorded the firm’s French record is a summary, not a translation
- Date checked
- not recorded
Follow this case
Proceedings, related decisions, appeals, parties and patents as recorded in the registry and in the Dhenne Avocats corpus. Each link states its source.
Parties
- claimantMerz Pharma France7 decisions in the corpusFollow this party
- claimantMerz Therapeutics GmbH7 decisions in the corpusFollow this party
- claimantMerz Pharmaceuticals LLC8 decisions in the corpusFollow this party
- defendantViatris Santé7 decisions in the corpusFollow this party
Decisions in the same proceedings and documented appeals
What the record states
- Nature of the act
- Appeal RoP220.1
- Outcome (Dhenne Avocats summary)
- La cour d’appel infirme le refus pour tardiveté et interdit à Viatris de commercialiser en France son générique de fampridine jusqu’à l’expiration du certificat, le 25 juillet 2026, avec remise des produits sous astreinte.
- Appeal
- Decision of the Court of Appeal.
- Instance
- Court of Appeal decision.
Patents mentioned
EP 2 377 536mentioned in: Dhenne Avocats analysis Follow this patent
Related decisions cited in the analyses
- Merz Pharmaceuticals v Viatris Santé (CoA, 26 January 2026) cited in this record
- Meril Italy v Edwards Lifesciences (CoA, 25 November 2025) cited in this record
- Merz therapeuthics v Viatris Santé (CFI, 21 November 2025) cited in this record
- Boehringer Ingelheim International v Zentiva Portugal (CoA, 13 August 2025) cited in this record
- Biolitec Holding v Light Guide Optics Germany (CoA, 24 February 2025) cited in this record
- Merz Pharma France v Viatris Santé (CFI, 30 July 2026) cites this decision
- Viatris Santé v Merz Pharmaceuticals (CoA, 19 December 2025) cites this decision
- Merz Pharma France v Viatris Santé (CFI, 15 October 2026) cites this decision
Patents and standards
| Publication | Role in the dispute | Family | Standard and declaration | Pool | Sources |
|---|---|---|---|---|---|
EP 2 377 536Methods of Using Sustained Release Aminopyridine Compositions recorded proprietor: Acorda Therapeutics Inc | Mentioned in the analysis (role not qualified) Also mentioned in 6 other decision(s): Merz Pharma France v Viatris Santé (CFI, 30 July 2026) · Gowling WLG v Merz Therapeutics (CFI, 19 February 2026) · Merz Pharmaceuticals v Viatris Santé (CoA, 26 January 2026) · Viatris Santé v Merz Pharmaceuticals (CoA, 19 December 2025) · Merz Therapeutics v Viatris Santé (CFI, 17 September 2025) · Merz Pharma France v Viatris Santé (CFI, 15 October 2026) | not recorded | not recorded | not recorded | Espacenet · European Patent Register existence and title of the publication checked on 30 October 2026 (Google Patents, Espacenet and Register links are not checked automatically) mentioned in: Dhenne Avocats analysis |
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