2seventy bio v Johnson & Johnson (CFI, 2026-09-23)

Holding

In this CAR-T life sciences infringement action, the Brussels Local Division dismissed the defendants' Rule 190 RoP applications for production of evidence directed at documents of the NIH (laboratory notebooks, invention reports, grant files, notice records), rejected the NIH's request to be reclassified from intervener to co-claimant in the infringement action, and reserved costs. The court held that a Rule 190 order requires, among cumulative conditions, that the underlying claims be plausible on the basis of reasonably available evidence, a threshold the defendants' entitlement-based challenge to 2seventy bio's standing did not meet at this stage.

Why it matters

The order, published with seven official headnotes, gives structured guidance on three recurring questions. First, on intervention: the Rules of Procedure do not allow interventions in which the intervener directs claims against other parties, and a counterclaim for revocation makes the intervening patent holder a defendant to that counterclaim without making it a co-claimant in the infringement action. Second, on Rule 8.4 RoP: the fiction that the registered proprietor is treated as proprietor applies, in the court's words, “only for the application of the RoP and more specifically the administrative tasks to be performed by the Court”, so that entitlement may be raised as a substantive defence and the presumption is rebuttable. Third, on Article 47 UPCA: prior notice to the proprietor is assessed at the date the action is recorded in the register and the burden of proving compliance lies on the claimant. The practical consequence is that defendants cannot use Rule 190 as a discovery tool to build a speculative entitlement defence, while licensees suing under Article 47 must document prior notice before filing.

Practical point

Exclusive licensees preparing UPC actions should assemble contemporaneous proof of prior notice to the proprietor before lodging the Statement of claim, since later production requests aimed at the proprietor's files will not cure a standing gap.

Official headnote

When assessing an application to produce evidence, the Court should assess the plausibility of the underlying claims at that stage of the proceedings. (headnote 6 of 7) The condition of 'prior notice' in Article 47(2) or (3) UPCA should be assessed by the Court when the action is brought. (headnote 7 of 7)

Official decision (PDF) · UPC registry entry

Case timeline

• 2026-06-15 : 2seventy bio v Johnson & Johnson (CFI, 2026-06-15)

Dhenne Avocats represents claimants and defendants in European patent disputes before the Unified Patent Court, including the Paris divisions.