Standing to bring a claim is not an issue which can be dealt with as a preliminary objection
GXD-Bio Corporation v Myriad Genetics S.r.l and others[1] (UPC_CFI_437/2024)
Order of 14 February 2025 (ORD_68782/2024)[2]
The claimant brought an action before the UPC Local Division in Munich alleging infringement of EP3,346,403 and seeking damages for acts occurring since 17 June 2020.
The claimants were not the original proprietors of the patent and were entered in the relevant national registers on various dates during 2024
The Myriad Defendants filed a preliminary objection requesting that the judge-rapporteur reject parts of the action to the extent that they concerned acts committed before the claimant was registered as the proprietor.
The Myriad Defendants argued, relying on Art. 47(1) to (3) UPCA, that the claimant's action in respect of alleged infringements before the claimant was registered as the proprietor of the patent must rely on an assignment of those claims but that the UPC is only competent to hear claims for infringement brought by a proprietor or licensee. The Myriad Defendants further argued that the UPC cannot award damages in respect of a claim which a claimant has acquired by assignment because the assignee is not "the injured party" ( Art. 68(1) UPCA).
Th claimant argued that Myriad Defendants' objections relating to an alleged lack of standing were not an issue about the competence of the Court to generally hear such claims.
The judge agreed with the claimant, reasoning that the available grounds for bringing a preliminary objection set out in Rule 19.1 RoP are exhaustive. These are rule 19.1(a) the "jurisdiction and competence" of the court, rule 19.1(b) the "competence" of the division of the Court and rule 19.1(c) the "language" of the Statement of Claim. The Myriad Defendants' complaint was that the claimant did not have standing to bring part of its claim. The Judge found that standing does not fall within any of the grounds for bringing a preliminary objection, stating:
"[T]he Court's jurisdiction or competence is not linked to whether a person that brings an action is ultimately entitled to bring the action and/or whether that person is in fact fully entitled to the asserted claims."
Accordingly, the Myriad Defendants' preliminary objection was rejected.
[1] 1. Myriad International GmbH, 2. Myriad GmbH, 3. Myriad Service GmbH, 4. Myriad Genetics GmbH, 5. Myriad Genetics S.A.S., 6. Myriad Genetics B.V., 7. Myriad Genetics S.r.l., 8. Myriad Genetics Inc., together "the Myriad Defendants" and 9. Eurobio Scientific.