Syngenta v Sumi Agro (CFI, 14 April 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 14 April 2025 (UPC_CFI_566/2024 and UPC_CFI_39/2025, ORD_16126/2025), the Munich Local Division (Judges Zigann, presiding and rapporteur, Schober, Pichlmaier and Dorland-Galliot) granted Syngenta leave to extend its infringement action on EP 2 152 073 against Sumi Agro and Sumi Agro Europe to Poland, the Czech Republic and the United Kingdom. It decided to hear the infringement action and the counterclaim for revocation together (Rule 37.2), extended the timetable by two months and refused leave to appeal. The order shows how amendments prompted by BSH Hausgeräte v Electrolux are handled procedurally.

Question

Could the extension to non-UPC territories have been sought earlier with reasonable diligence, given Sumi Agro’s argument, based on Advocate General Emiliou’s opinions, that it could have been made in September 2024?

Decision

The panel held that the amendment could not have been made earlier with reasonable diligence (Rule 263.2(a)): as the Court of Appeal had held, even if it was not impossible, Syngenta could not be expected to include non-UPC territories in its original statement of claim, given the settled case law following GAT v LuK. The legal uncertainty surrounding Advocate General opinions is a good reason not to base procedural decisions on them. The amendment does not unduly hinder Sumi Agro, which was granted the two-month extension it sought. Leave to appeal was refused because the Court of Appeal had already ruled on these issues.

Key points for practice

• A patentee is not required to anticipate a change in the law heralded by an Advocate General’s opinion: diligence is assessed against the law as it stood when the claim was filed.
• The answer to a late extension is procedural: more time for the defence rather than refusal of the amendment.

Provisions applied

Agreement on a Unified Patent Court

Art. 73(2)(b)

Rules of Procedure

Rules 37.2, 220.2 and 263.2(a)

Case law cited

Court of Appeal, UPC_CoA_169/2025, APL_9191/2025 (paragraph 23), CJEU, GAT v LuK, C-4/03, CJEU, BSH Hausgeräte v Electrolux (relied on by the claimant)

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.