UPC_CFI_1357/2025 – Labs v GC Aesthetics

Court
Local Division Brussels
Date
Outcome
Denied
Sector
Pharma/Bio
Decision Type
PROCEDURAL

Expert Commentary

Preliminary objection Facts 1. Labs started infringement proceedings against 13 companies in various (also non-UPC) countries. 2. Labs argues that the Local Division has (international) jurisdiction, because one of the defendants is a Belgian company and there is a commercial relationship between all defendants. 3. GE Aesthetics lodges a preliminary objection with respect to the Irish, Spanish, Norwegian, Swiss, and UK designations of the invoked patent, because the Belgian defendant has no activities outside Belgium (let alone outside the UPC area). They refer to the decision of the Court of Justice of the European Union (“CJEU”) in Roche v Primus (case C-359/03). 4. Labs argues the objection relates to the scope of the ordered measures, and not to the jurisdiction itself. Moreover, the Belgian defendant “engages in coordinated commercial activities, including supply-side act by UPC-domiciled entities”. The Court 1. The defendant (Labs) does not object to the international jurisdiction and competence of the Brussels Division with respect to the defendants established in non-UPC countries, but only to the jurisdiction with respect to alleged infringements in non-UPC countries. 2. As no invalidity arguments have been made, the Court sees no problem in dealing with the infringement. 3. The Court dismisses the preliminary objection. Comment 1. The Brussels Division is right: if you do not argue that the Court has no international jurisdiction and/or internal competence with respect to defendants then such jurisdiction is a given. The Court refused to help the defendants in reading something in the requests that was not there. This once again shows that you should be an experienced litigator if you litigate before the UPC. In this case it could have been wise to ask advice from a Dutch litigator; they have experience with cross-border issues since the nineties (both cited CJEU cases Roche v Primus and Solvay v Honeywell come from Dutch courts). The questions referred to the CJEU in the latter case were formulated by judge Kalden who is now in the Court of Appeal of the UPC. 2. It should be noted that the more recent CJEU case BSH Hausgeräte v Electrolux was about jurisdiction based on Art. 4 of the Brussels I bis Regulation (“BR”), and not Art. 8(1) BR. 3. In Roche v Primus, the CJEU held that there cannot be a situation of conflicting judgments (and thus applicability of Art. 8 (1) BR) if each defendant is only infringing in his own country. So, indeed, if the Belgian defendant would only infringe in the UPC and all non-UPC defendants would not infringe in the UPC, there would be no international jurisdiction based on Art. 8 (1) BR against these non-UPC-based defendants, if one applies Roche v Primus. However, if the claimant would state that such (cross-border) infringements take place, then in general, jurisdiction is given (except if it is obvious that the statement is untrue). 4. First of all, the Roche v Primus situation (which was created by the question phrased by the Dutch Supreme Court which had stated as facts that each defendant only infringed in their own country) shall in practice not happen very often in these modern internet times, where often products are offered on websites accessible in many countries. Secondly, it is very much the question whether or not Roche v Primus is still good law. The decision has been heavily criticized. It is of course very strange to say that decisions are not conflicting if one court in the EU – with respect to the same patent and the same infringing product, and applying the same law (Art. 69 EPC) – comes to a different decision than another EU court. In my opinion, later CJEU cases such as Painer (a copyright case) indicate that Roche v Primus is not good law anymore. However, that remains to be confirmed by the CJEU. 5. The decision in BSH Hausgeräte v Electrolux is also of importance in an Art. 8 (1) BR case when dealing with a validity challenge. In an obiter dictum, the Brussels Division in fact stated that the invalidity of the European patent in the various countries was not challenged, and that therefore the Division can proceed with the infringement. If challenged, the Division would have the option to e.g. suspend the infringement action or (with respect to non-UPC countries) deal with the invalidity defence. 6. The fact that the Brussels Division is not competent to deal with the validity of European patents granted for non-UPC, EU and Lugano countries does in my opinion not have to be raised already in a preliminary objection against an infringement claim, but can be done in the statement of defence to the infringement claim. Often a revocation action with respect to the patent will be filed, which seems wise if you want to argue that the European patent is also not valid for non-UPC countries!

Full Decision Text

Brussels - Local Division UPC CFI 1357/2025 Procedural Order (R.20 RoP) of the Court of First Instance of the Unified Patent Court Issued on 15 January 2026 Concerning EP 3 107 487 B1 APPLICANTS PRELIMINARY OBJECTION (DEFENDANTS INFRINGEMENT ACTION) (1) GC AESTHETICS PARENTCO LIMITED (2) NAGOR LIMITED (3) GC AESTHETICS MANAGEMENT LIMITED (4) GC AESTHETICS (DISTRIBUTION) LIMITED (5) GC AESTHETICS (France) SAS (6) EUROSILICONE SAS (7) GC AESTHETICS ITALY S.R.L. (8) GC AESTHETICS GmbH (9) GC AESTHETICS SPAIN, S.L.U. (10) GLOBAL CONSOLIDATED AESTHETICS (UK) LIMITED (11) GC AESTHETICS HOLDINGS LIMITED (12) GC AESTHETICS FINANCE LIMITED (13) ROMED N.V. Represented by: Bristows (Ireland) LLP Brian Cordery Dr Gregory Bacon Andrew Bowler James Boon Electronic address for servicing: gregory.bacon@bristows.com Hereafter referred to as: Collectively as “Defendants” Separately as “Defendant (1 to 13)” Defendants 1-12 as “GC AESTHETICS” Defendant 13 as “ROMED” RESPONDENT PRELIMINARY OBJECTION (CLAIMANT INFRINGEMENT ACTION) ESTABLISHMENT LABS S.A. Represented by: Haseltine Lake Kempner LLP Haseltine Lake Kempber PartG mbB Joanna Deas Alex Rogers Harriet Crawford Joseph Lenthall Electronic Address for servicing: jdeas@hlk-ip.com Hereafter referred to as: “Claimant” or “LABS” UPC CFI 1357/2025 2 PATENT AT ISSUE Number Proprietor(s) EP 3 107 487 B1 ESTABLISHMENT LABS S.A. LANGUAGE OF THE PROCEEDINGS: English SUBJECT MATTER: Preliminary Objection (R. 19 RoP) PANEL - LOCAL DIVISION Presiding Judge (Legally Qualified Judge) Judge-Rapporteur (Legally Qualified Judge) Samuel Granata Samuel Granata Legally Qualified Judge: Carine Gillet Legally Qualified Judge: Marije Knijff DECIDING JUDGES: Order issued by the panel I. PROCEDURAL BACKGROUND AND ARGUMENTS PARTIES 1. On 30 October 2025, LABS introduced its Statement of Claim (serviced to all Defendants on 14 November 2025) with the following main request (directed to all Defendants): A. The Claimant requests that the Court: (a) grants a permanent injunction to cease and desist from: making, offering, placing on the market, using or importing or storing for those purposes a product as defined in claims 1, 4, 7, 11 and 13 of EP 3 107 487 B1 ( “the Patent ”) in: Belgium, Switzerland, Germany, Spain, France, the United Kingdom, Ireland, Italy, Norway, Netherlands, Portugal, Sweden and Denmark (Articles 63(1) and 25(a) UPCA); 2. In its Statement of Claim the following parts relate to the international jurisdiction of the UPC and territorial competence of the LD Brussels: • Under I. “Information as per rules 13 and 14 Rules of Procedure” (Contents of the Statement of Claim) 13.1(i): Indication of the Chamber which is to decide on the action, with a statement of the grounds of jurisdiction UPC Local Division Brussels, Belgium in accordance with Articles 31, 32(1)(a), 33(1)(a), and 33(1)(b) of the UPCA • Under Title 3: “Jurisdiction” 15. Article 33(1) of the Agreement on a Unified Patent Court (hereinafter ‘UPCA’) provides that actions shall be brought either in a local division in which infringement has occurred (Article 33(1)(a) UPCA) or in where one of multiple Defendants has its residence or principal place of business (Article 33(1)(b) UPCA). In this instance, the Claimant is aware of the sale of the Perle implant by Defendant 13 (Romed) and therefore the import of the Perle implant into Belgium by the GC Aesthetics Group. Defendant 13 has its principal place of residence in Belgium. Accordingly, the Brussels Local Division has jurisdiction under both (Article 33(1)(a)) and (Article 33(1)(b) UPCA). UPC CFI 1357/2025 3 16. As indicated above, all Defendants have a commercial relationship and the infringement relates to the same infringement, so under Article 33(1)(b) UPCA the Claim may be brought in the local division of one of the Defendants (in this case, the Brussels Local Division). The commercial relationship between them is clearly established above, and it will be clear that there is the “quality and intensity” for a commercial relationship as set out in ARM v IC Pillar (Local Division Paris, Ord 18817/2024, UPC CFI 495/2023) in that Defendants 1 to 12 all belong to the same group, Defendant 13 is a distributor for the GC Aesthetics Group in Belgium, and they all have related commercial activities aimed at the same purpose, i.e. the making, offering, placing on the market, using or importing or storing of GC Aesthetics Group’s products, including its Perle implant, throughout the EU and in the UK. They are all involved in the same infringement, i.e. making, offering, placing on the market, using or importing or storing the Perle implant in the jurisdictions listed in section II. A, above, which infringes the Patent, (EP 3 107 487 B1), i.e. in accordance with the requirements for the “same infringement” laid down in Edwards Lifesciences v Meril, UPC CFI 501/2023, Decision of 4 April 2025. 17. In view of the above, the Brussels Local Division has jurisdiction under Article 33(1)(a) and Article 33(1)(a) UPCA. • Under Title 4 “Universal Jurisdiction” 18. With respect to Defendant 13, the Local Division has jurisdiction and competence to rule on the infringement of the Patent which is also validated in non-UPC contracting states as indicated above. 19. In light of the Decision of the CJEU in re C-339/2022 of 25 February 2025 (BSH Hausgeräte GmbH/Electrolux AB), the Brussels Local Division, deemed to be a Court of a EU Member State, has universal jurisdiction to adjudicate on infringement issues related to European Patents over defendants domiciled in Belgium pursuant Article 32 UPC in conjunction with Articles 4(1) and 71a and 71b of the Regulation (EU) 1215/2012 (recast) as amended by Regulation (EU) 542/2014 (standing case law; LD Milan, order of 15 April 2025, UPC CFI 792/2024-AI-pinestars/Dainese; UPC Dusseldorf, Decision of 28 January 2025, UPC CFI 355/202 - Fujifilm/Kodak; Local Division Paris, 21 March 2025, UPC CFI 702/2024 - Mul-T-Lock/IMC Creations). 20. Given that Defendant 13 is domiciled in Belgium (noting that Defendants 5, 6, 7, 8 and 9 are also domiciled in UPC Contracting States), the Brussels Local Division has universal jurisdiction. 3. On 15 December 2025 (14 December 2025 being a Sunday), the Defendants submitted a Preliminary Objection in UPC CFI 1357/2025 with the following requests: I. The preliminary objection is upheld; The UPC lacks jurisdiction over: a. the alleged infringement in the Republic of Ireland of the Irish national validation of EP 3 107 487 B1 and consequently the complaint is dismissed with respect to the alleged infringement of the Irish national validation of EP 3 107 487 B1; b. the alleged infringement in Spain of the Spanish national validation of EP 3 107 487 B1 (ES 2 923 523) and consequently the complaint is dismissed with respect to the alleged infringement of the Spanish national validation of EP 3 107 487 B1 (ES 2 923 523); c. the alleged infringement in Norway of the Norwegian national validation of EP 3 107 487 B1 and consequently the complaint is dismissed with respect to the alleged infringement of the Norwegian national validation of EP 3 107 487 B1; d. the alleged infringement in Switzerland of the Swiss national validation of EP 3 107 487 B1 and consequently the complaint is dismissed with respect to the alleged infringement of the Swiss national validation of EP 3 107 487 B1; and/or UPC CFI 1357/2025 4 e. the alleged infringement in the United Kingdom of the UK national validation of EP 3 107 487 B1 and consequently the complaint is dismissed with respect to the alleged infringement of the UK national validation of EP 3 107 487 B1. II. Consequently, that the UPC rejects the Claimant’s action regarding the national designations of EP 3 107 487 B1 in the Republic of Ireland, Spain, Norway, Switzerland and the United Kingdom as against all Defendants and declares that part of the action extinguished. III. The Claimant is ordered to pay the costs of the preliminary objection; and IV. An interim award of costs under R.211.1(d) RoP in relation to the costs of this preliminary objection, in the amount of EUR 20,000, to be paid by the Claimant within 14 days. 4. The position of Defendants can be summarized, in its essential arguments, as follows: • The preliminary objection relates to the jurisdiction of the UPC in relation to the Irish, Spanish, Norwegian, Swiss and UK designations of EP 487. • The Defendants argue that where LABS requests the Court to apply the so-called “long-arm jurisdiction” outside the contracting states to the UPCA based on the domicile of Defendant 13 (ROMED), a company with domicile in Belgium cannot be brought in line with the applicable jurisdictional articles of the UPCA (juncto the Regulation (EU) 1215/2024 (hereafter referred to as “BR”)). The Defendants argue that LABS solely relies for this jurisdiction on Art. 4(1) BR (as interpreted by the CJEU in BSH/Electrolux (Judgement of 25 February 2025, BSH Hausgeräte GmbH v Electrolux AB, Case C-339/22, EU:C:2025:108) in conjunction with the domicile of Defendant 13 (ROMED) in Belgium. However, LABS has not pleaded and has not evidenced any activities of this Defendant 13 (ROMED) in countries outside of Belgium, let alone the countries that are not parties to the UPCA. As such the Defendants argue the sole legal basis on which LABS seeks relief outside the UPC Member States is ineffective. • In arguing the above rejection of jurisdiction, the Defendants further refer to European Patent Convention 1972 (hereafter referred to as “EPC”) and the system of centralized prosecution, and opposition to grant, of an EP at the EPO. Any action of infringement of an EP should be examined in light of the relevant national law in force in each of the EPC states for which the EP was granted (Art. 64 (3) EPC). This principle is also reflected in art. 24(4) BR giving national courts exclusive jurisdiction in proceedings concerned with the registration or validity of patents granted in their state. The so-called “long-arm jurisdiction” under art. 4(1) BR requires the locally domiciled party to be infringing patents outside the jurisdiction of the EU court where the defendant is resident or domiciled. The Defendants, therefore, hold that the UPC only has jurisdiction under art. 4(1) BR if LABS can show that Defendant 13 (ROMED) is (also) acting in the foreign country. The Defendants then hold that LABS “has not even attempted to argue that this is the case for the non-UPC Member States”. The Defendants argue that “(i)t is not sufficient that the locally-domiciled defendant allegedly infringes a patent in the local territory and that a different defendant, however closely connected, allegedly infringes another designation of the same European patent (or even a different patent) in the foreign territory”. The Defendants hold that BSH/Electrolux-case kept untouched the principle that “European patent rights are territorial rights and that an EU court cannot adopt jurisdiction in relation to a foreign patent right merely on the basis that the claims of the patents in the two countries may be the same, that the allegedly infringing product or process is the same and/or that the various defendants are in the same group”. In further developing this arguments, Defendants refer to the case law of the EUCJ (i.a. Judgment of 13 July 2006, Roche Nederland BV v Primus & Goldenberg, Case C-359/03, EU:C:2006:458 and Judgment of 12 July 2012, Solvay SA v Honeywell Fluorine Products Europe BV & ors, Case C-616/10, EU:C:2012:445) and the UPC decisions (i.a. Alpinestars SPA v Dainese spa, UPC CFI 792/2024 (LD Milan), order of 8 April 2025, Fujifilm Corporation v Kodak GmbH, UPC CFI 365/2023 (LD Mannheim), decision of 18 July 2025; Mul-T-Lock France & Mul-T-Lock Suisse v IMC Créations, UPC CFI 702/2024 (LD Paris), order of 21 March 2025; Dyson Technology Ltd v Dreame International (Hongkong) Limited & ors, UPC CFI 387/2025 (LD Mannheim), order of 14 August 2025; Seoul Viosys Co Ltd v Laser Components SAS, UPC CFI 440/2023 (LD Paris), decision of 24 April 2025; Hurom Co. Ltd v NUC Electronics Co., Ltd, UPC CFI 162/2024 (LD Mannheim), decision of 11 March 2025; ARM Ltd & ors v IC Pillar LLC, UPC CFI 495/2023 (LD Paris), UPC CFI 1357/2025 5 decision of 11 April 2024; Edwards Lifesciences v Meril, UPC CFI 501/2023 (LD Munich), decision 4 April 2025). 5. By Preliminary Order (I) dated 15 December 2025, in applying R. 20.1 RoP, the Court invited LABS to submit its comments regarding the Preliminary Objection. 6. The arguments put forward by LABS in their Reply can be summarized as follows: • The Preliminary Objection improperly seeks to challenge jurisdiction over non-UPC designations, but under UPC case law and CJEU precedent, such issues are to be addressed in the main proceedings. This is further argued as follows: o The Defendants argue that their Preliminary Objection relates only to jurisdiction of the UPC in relation to the Irish, Spanish, Norwegian, Swiss and UK designations of EP 487. o Although framed as a Preliminary Objection under Rule 19(1)(a) RoP, the Defendants’ objection is not concerned with the jurisdiction or competence of the Court. The Defendants do not dispute that the UPC has jurisdiction over EP 487, nor that the LD Brussels is competent. Instead, the objection relates to the alleged territorial scope of acts or remedies. Such issues do not affect the Court’s jurisdiction and, if relevant, should be considered later in proceedings. Therefore they cannot form the basis of a preliminary objection, as they require a full factual assessment during the main proceedings. • The Court has jurisdiction over all Defendants under Article 33(1)(b) UPCA. The GC AESTHETICS GROUP and Defendant 13 (ROMED, domiciled in Belgium) engage in coordinated commercial activities, including supply-side act by UPC-domiciled group entities, which satisfy the “quality and intensity” test for a commercial relationship as recognised in ARM v IC Pillar (LD Paris, Ord 18817/2024, UPC CFI 495/2023) and Fujifilm v Kodak (UPC CFI 355/2023, Düsseldorf/Mannheim). This justifies joinder of all Defendants in a single action to prevent duplicative litigation and inconsistent judgements. In arguing the above LABS notes that “the Defendants’ submissions focus entirely on (ROMED) but is silent on the activities of GC AESTHETICS GROUP itself in Belgium and all other countries”. • All Defendants are engaged in acts that infringe EP 487, as set out in LABS’ Statement of Claim. The co- ordinated actions of the GC AESTHETICS GROUP including UPC domiciled entities involved in supply and distribution, constitute a single, connected infringement, satisfying the requirements for jurisdiction and joinder under Article 33(1)(b) UPCA. • The Court has jurisdiction to consider the non-UPC national designations under long-arm/universal jurisdiction principles grounded in CJEU authority and reflected in UPC case law. Such issues concern, at most, the territorial scope of any eventual relief and do not constitute a proper ground for a preliminary objection under Rule 19 RoP (UPC CFI 159/2024, LD Mannheim, 11 March 2025). As further confirmed in the Moderna R.333 review (UPC CFI 191/2025 & 192/2025), questions relating to alleged acts outside UPC territory must be assessed in the main proceedings and not at the Preliminary Objection stage. • The costs requested by Defendants for preparing the Preliminary Objection are manifestly disproportionate to the limited scope and complexity of the Preliminary Objection, which raises a single procedural issue. The Defendants’ request for interim costs should be denied, as there is no Rule 19 RoP basis for such costs at this stage, and costs are ordinarily determined at the conclusion of proceedings (Rules 150–152 RoP). UPC CFI 1357/2025 6 II. GROUNDS FOR THE DECISION II.A. Admissibility of the Preliminary Objection 7. The Claimant did not raise issues regarding the inadmissibility of the Preliminary Objection. For the sake of completeness, the Court holds that the Preliminary Objection was filed (on 15 December 2025) within one month (R. 19.1. RoP) taking into consideration the starting point of 14 November 2025 and this day being a Sunday (R. 301.1 RoP). II.B. Jurisdiction and Competence 8. In their Preliminary Objection, the Defendants do not oppose the UPC's international jurisdiction (competence) nor the LD Brussels’ territorial competence with regard to any of the Defendants summoned. Their Preliminary Objection relates to a lack of jurisdiction over the alleged infringement in (i). Republic of Ireland (under I.a), (ii) Spain (under I.b), (iii) Norway (under I.c), Switzerland (under (I.d)) and United Kingdom (under I.e) of the respective national validations of EP 487. The Defendants request that the complaint be dismissed with respect to the respective national validations of EP 487. Subsequently, the Defendants request that the Court rejects LABS' action with regard to the aforementioned national validations and declares that part of the action “extinguished”. 9. In view of the above and as the Court is bound to the wording of the actual requests articulated by the Defendants in the substantive part of their Preliminary Objection, the Court holds (in application of Rule 19.7 RoP and Art. 26(1) BR), that the absence of an objection from the Defendants domiciled in the Republic of Ireland (defendants 1, 3, 4, 11 and 12), the Isle of Man (defendant 2), Spain (defendant 9) and the United Kingdom (defendant 10) requesting that one or more of the individual named Defendants were unrightfully sued before the UPC (and the LD Brussels), should be treated as a submission to the UPC's international jurisdiction and the LD Brussels' territorial competence to hear the case against them. 10. The only issue is whether the UPC has international jurisdiction to rule on (alleged) infringements by the Defendants relating to (alleged) acts in Ireland, Norway, Switzerland and the UK, given the national designations of EP 487. It is considered set case law that the UPC has jurisdiction to decide on infringement of all parts of a European patent, including those in non-UPC states such as the Republic of Ireland, Spain, the United Kingdom, Switzerland and Norway, provided that one of the defendants is rightfully sued before the UPC. Once again, the Court should point out that none of the Defendants opposed the UPC's international jurisdiction. Consequently, the UPC is competent to hear the case with regard to an infringement to any of the national designations of EP 487 as claimed by LABS. 11. In addition to the above, but entirely subsidiary to it, it should be noted that, as the Defendants have made no indication of national validity proceedings (cf. argumentation based UPC CFI 1357/2025 7 on Art. 24(4) BR) in the Republic of Ireland, Spain, Norway, Switzerland or the United Kingdom, the Court sees no reason why such exclusive jurisdiction would prevent it from assessing the alleged infringement relating to the respective national validations of EP 487. 12. In conclusion, the Court dismisses the Preliminary Objection and holds that the assessment of whether, and if so by which specific acts, the Defendants (together or individually) have allegedly infringed the Irish, Spanish, Norwegian, Swiss and UK designations of EP 487 (cf. UPC CFI 191/2025 and UPC CFI 192/2025 – Review Order on a R. 19 RoP application dated 18 August 2025), and which law should be applied to assess such infringement, forms part of the merits assessment and is not relevant to a R. 19 RoP objection. II.C. Interim Award of Costs 13. There is no basis in R. 19 RoP indicating that the assessment of costs related to the R. 19 RoP objection should be made separately from the assessment based on R. 150 and 152 of the RoP. Consequently, the costs and the party to whom they should be awarded will be determined at the end of the proceedings on the merits. ORDER The Court dismisses the Defendants’ Preliminary Objection. Issued by the panel of the LD Brussels on 15 January 2026 Samuel GRANATA Judge-Rapporteur Presiding Judge LD Brussels Legally Qualified Judge Carine Gillet Legally Qualified Judge Marije Knijff Legally Qualified Judge Appeal Information An appeal against the present Order may be lodged at the Court of Appeal, by any party which has been unsuccessful, in whole or in part, in its submissions, within 15 days of the date of service of the Court’s decision (R. 21.1. RoP juncto R. 220.2, RoP).

Key Holdings

  • International jurisdiction over non-UPC countries for infringement claims is a given if not explicitly challenged regarding defendants' competence.
  • The Court will not interpret requests beyond their explicit wording; litigators must be precise.
  • The applicability of CJEU's Roche v Primus (C-359/03) regarding conflicting judgments in cross-border infringement cases is questioned in modern internet times.
  • Validity challenges for European patents in non-UPC countries can be raised in the statement of defence, not necessarily in a preliminary objection.

Tags

  • Cross-Border
  • Jurisdiction
  • Patent Validity
  • Preliminary Objection

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