Syngenta v Sumi Agro (CFI, 27 August 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 27 August 2024 (UPC_CFI_201/2024, ACT_23636/2024, ORD_47657/2024), the Munich Local Division (Zigann, Schober, Pichlmaier, Dorland-Galliot) granted Syngenta Limited’s application for provisional measures on EP 2 152 073 (herbicide compositions) against Sumi Agro Limited and Sumi Agro Europe Limited. It prohibited them from marketing the herbicide Kagura in thirteen Contracting Member States, without requiring security. It sheds light on proof of a product’s composition and on the risk of first infringement arising from advertising.

Facts and procedure

The patent claims a composition combining at least one sulfonylurea herbicide, at least one HPPD-inhibiting herbicide and at least one saturated or unsaturated fatty acid at 1% to 95% by weight, the last feature being disputed. Kagura, also sold as Genki, contains mesotrione and nicosulfuron. It was marketed, among other places, in the Czech Republic and advertised on the respondents’ German website and in their catalogues. Two analyses of a Czech sample found fatty acid contents of 5.67% and then 3.6%. The respondents argued that there were two product versions (2023 and 2024), that only free fatty acids added beyond rapeseed oil should count, and that the 2023 version had never been sold in the UPC territory. The application was filed on 30 April 2024 and heard on 12 July 2024, when Syngenta withdrew its request for seizure.

The applicable law

The division relies on Arts. 25(a), 26, 47(1) and 62 UPCA and applies Rules 206, 209, 211 and 213 RoP. It must be satisfied with a sufficient degree of certainty that the applicant is entitled, that the patent is valid and that it is infringed or about to be infringed (Rule 211.2 RoP), and must then assess urgency and weigh the parties’ interests (Rule 211.3 RoP). On validity, it refers to Arts. 54, 56, 69, 83 and 138(1) EPC.

Question

Can imminent infringement be inferred from a sale found in the Czech Republic and advertising in other Contracting Member States, and how does the division assess contested validity and urgency in summary proceedings?

Decision

Syngenta’s entitlement is not disputed. For a product, it is sufficient for the applicant to allege and prove that it had all the claimed features at the time of use. The 2023 version is held to infringe on a summary assessment. The Czech sale and the advertising in UPC states create a risk of first infringement, which only a cease-and-desist declaration with a penalty clause could have removed, an actus contrarius being insufficient. Validity is sufficiently assured: novelty over EP 0 915 652 is upheld, inventive step is maintained, and the insufficiency and plausibility objections fail, the respondents’ attacks being limited to their best three. Urgency is made out: a two-month period running from 18 March 2024 is accepted, and Syngenta’s Elumis product faces competition from the cheaper Kagura among the same maize growers. The balance of interests favours Syngenta, as the patent expires in 2028 and the respondents’ alleged harm is speculative. The division orders cessation in Germany, France, Austria, Belgium, Bulgaria, Estonia, Latvia, Lithuania, Luxembourg, the Netherlands, Portugal, Slovenia and Italy, on pain of penalties of up to EUR 1,000 per item or EUR 100,000 per day for each respondent, with immediate enforceability. The request for EUR 5 million in security is dismissed, Syngenta being based in the United Kingdom with no reason to doubt enforcement of a damages award there. No costs decision is made, the value of the dispute being set at EUR 5 million, proceedings on the merits must be started within the period under Rule 213 RoP.

Key points for practice

• Infringement of a composition claim may be proved by analysing a sample bought in a single Contracting Member State, provided it had all the features at the time of use.
• A sale in one UPC state and advertising in others are enough to found a risk of first infringement over a wide territory. Only a cease-and-desist declaration with a penalty clause removes it.
• In summary proceedings the Munich Local Division limits validity attacks to the respondent’s best three and accepts a period of about two months to act.
• Practical point: a respondent relying on successive versions of the product to contest infringement or urgency must prove them precisely, and security will not be ordered without a concrete reason to fear non-enforcement.

Provisions applied

Agreement on a Unified Patent Court

Arts. 25(a), 26, 47(1), 62, 73 and 82

Rules of Procedure

Rules 8.5, 206, 209, 211, 213, 220.1 and 271.6(b)

European Patent Convention

Arts. 54, 56, 69, 83 and 138(1)

Case law cited

NanoString Technologies v 10x Genomics, Court of Appeal, 26 February 2024, 10x Genomics v NanoString Technologies, Munich Local Division, 19 September 2023, Mammut Sports Group v Ortovox Sportartikel, Düsseldorf Local Division, 9 April 2024, Munich Local Division, 21 May 2024 (UPC_CFI_443/2023), Munich Central Division (UPC_CFI_1/2023)

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.