EPO Revokes a Patent: Can a UPC Infringement Judgment Still Be Enforced?

The European Patent Office (EPO) has revoked a patent. Can an infringement judgment already issued by the Unified Patent Court (UPC) still be enforced?

The UPC Court of Appeal addressed this question on 2 November 2026 in DivX v. Netflix (UPC-CoA-176/2026 and UPC-CoA-177/2026). Netflix relied, among other things, on the Court of Appeal's earlier order in Meril v. Edwards, which considered the importance of avoiding conflicting decisions by the UPC and the EPO.

1. Patent Revoked — Why No Suspensive Effect?

On 15 September 2026, the Munich Local Division found indirect infringement of European patent EP 4 213 033 and dismissed the counterclaim for revocation. The EPO Opposition Division subsequently decided to revoke the patent. That decision, however, was not yet final.

Netflix appealed the first-instance judgment and requested, under Article 74(1) UPCA and Rule 223 RoP, that the appeal be granted suspensive effect in respect of the infringement judgment.

Under Article 74(1) UPCA, an appeal generally has no suspensive effect. The Court of Appeal may grant suspensive effect upon a reasoned request, but only in exceptional circumstances, assessed by balancing the parties' interests. Relevant considerations include whether the first-instance judgment is manifestly erroneous or whether enforcement would render the appeal practically pointless.

In this case, the Court of Appeal found that the EPO's revocation decision did not provide sufficient grounds for granting suspensive effect.

Before delivering its judgment, the Munich Local Division had already considered the Opposition Division's preliminary assessment of patentability but had reached a different conclusion. The subsequent EPO revocation was based on grounds that the Local Division had already examined.

The non-final revocation decision was therefore not, in itself, sufficient to justify granting suspensive effect to the appeal against the infringement judgment.

2. What Can We Learn from Meril v. Edwards?

In its order of 21 November 2024 in Meril v. Edwards (UPC-CoA-511/2024), the Court of Appeal explained that Article 33(10) UPCA and Rule 295(a) RoP allow the UPC to stay ongoing proceedings where a decision by the EPO Opposition Division is imminent. The aim of avoiding conflicting UPC and EPO decisions may be taken into account.

A stay may be considered even if the forthcoming EPO decision will not be final and may still be appealed.

However, a stay is not mandatory. It remains a matter of judicial discretion, depending on the circumstances of the case, including the parties' interests, the stage of the respective proceedings and the likelihood of revocation.

In DivX v. Netflix, the Court of Appeal reaffirmed these principles.

First, Netflix had not requested a stay during the first-instance proceedings. The Munich Local Division was therefore not required to explain expressly why it had not stayed the proceedings.

Second, the Local Division had considered the Opposition Division's preliminary assessment and reached its own conclusion on patent validity. The Court of Appeal expressly found that the Local Division's approach was consistent with the principles established in Meril v. Edwards.

There was also an important procedural distinction. Meril v. Edwards concerned a stay of ongoing proceedings before judgment, particularly under Article 33(10) UPCA. DivX v. Netflix, by contrast, concerned the suspensive effect of an appeal against an infringement judgment already delivered, under Article 74(1) UPCA.

3. biolitec v. Light Guide Optics: Proceedings Continue Despite Patent Revocation

A similar situation arose in the Munich Local Division's order of 2 April 2026 in biolitec v. Light Guide Optics (UPC-CFI-714/2024 and UPC-CFI-155/2025).

The Local Division refused the defendants' request for a stay even though the EPO Opposition Division had already revoked European patent EP 3 685 783. That revocation decision was likewise not yet final.

The Local Division noted that the UPC oral hearing had taken place before the oral hearing in the EPO opposition proceedings. There had therefore been no need to postpone the UPC hearing merely to await the EPO proceedings.

The Local Division was subsequently able to consider the EPO's revocation decision and its reasoning. As a decision from the EPO Board of Appeal was not expected in the near future, the Local Division saw no reason to stay the proceedings.

Notably, the Local Division did not reject the EPO's assessment outright. It agreed with the Opposition Division that the claims as granted contained added subject-matter.

However, the Local Division provisionally considered that the amended claims submitted by the claimant through its auxiliary requests could overcome this objection. It therefore continued the proceedings and appointed a court expert to address outstanding technical questions.

Unlike in DivX v. Netflix, the Local Division had not yet delivered an infringement judgment in biolitec v. Light Guide Optics. The issue was therefore whether to stay ongoing proceedings, rather than whether to grant suspensive effect to an appeal.

4. Conclusion

Taken together, these three decisions show that revocation of a patent by the EPO Opposition Division does not automatically require the UPC to stay its proceedings. Nor does it, by itself, justify granting suspensive effect to an appeal against an infringement judgment.

The key question is not simply whether the EPO has revoked the patent. The stage of the proceedings, the finality of the EPO decision and whether the UPC has already examined the relevant validity issues also matter.

Sources：

- DivX v. Netflix, Order of 2 November 2026
- Meril v. Edwards, Order of 21 November 2024
- biolitec v. Light Guide Optics, Order of 2 April 2026

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