Territorial Scope and Rectification: The Hague local division on Article 80 UPCA
Two related orders from The Hague local division illustrate the strict territorial boundaries of provisional measures. The Court rectified a publication order after an applicant attempted to extend its reach to non-UPC EPC states.
The territorial scope of a publication order under Article 80 UPCA should align with the court's established jurisdiction and substantive reasoning, and an applicant should not expect to secure a broader geographical reach by burying an extension in supplementary requests.
In two related orders from The Hague local division, a single judge first granted a preliminary injunction across the territory of the UPCA Contracting Member States and Switzerland, and then sharply curtailed the accompanying publication order just twelve days later. Together, UPC-CFI-0001615/2026 and UPC-CFI-0001615/2026 demonstrate how the Court polices the exact wording of requested relief and refuses to reward overly broad territorial drafting.
How did the local division construe the therapeutic role of Eubacterium hallii?
The substantive dispute in UPC-CFI-0001615/2026 concerned EP 2 753 187 B2, which protects the use of Eubacterium hallii (now taxonomically reclassified as Anaerobutyricum hallii) and/or Alcaligenes faecalis for use in preventing and/or treating insulin resistance and/or insulin resistance-related complications. The applicant, Caelus Lifesciences, sought provisional measures against Pendulum Therapeutics and iHerb Netherlands regarding the probiotic products "Glucose Control" and "Metabolic Daily".
The defendants argued that the claim should be limited to one specific bacterial strain, L2-7, which had been used in the patent's third example. They further contended that the patent required the bacteria to achieve the therapeutic effect "on its own". The single judge rejected both limitations. The Court held that an otherwise broader claim should not be limited to a particular strain used in an example. Furthermore, the description left open the possibility that hallii has a meaningful contribution to the effect but is not necessarily the only contributor. Because the defendants' own marketing materials advertised that the bacteria in their products convert fibre into butyrate to stimulate GLP-1 production, the Court found it more likely than not that the products fell within the scope of the patent.
Why did the Court extend provisional measures to Switzerland?
Jurisdiction and competence formed a crucial bridge to the eventual procedural correction. The applicant sought an injunction covering Belgium, Denmark, Germany, France, Italy, the Netherlands, Sweden, and Switzerland.
The Court established jurisdiction over the US-based Pendulum because the alleged harmful event occurred in the Netherlands, where test purchases were delivered. For the Swiss designation, the Court relied on the threat of irreconcilable decisions. Because the claims against Pendulum and the Dutch anchor defendant iHerb concerned the same patent and the same alleged infringing commercialisation, the local division assumed competence over the Swiss territory. The Court consequently ordered an injunction, delivery up, and the provision of information across the designated UPCA states and Switzerland.
What prompted the Rule 353 RoP application for rectification?
The tension arose from the specific wording of the publication order under Article 80 UPCA. In the original order, paragraph 5.4 ordered the defendants to publish a notice on their websites for the country-specific domains of "the UPC and EPC member states where the Patent is in force".
Five days later, the defendants filed an application for rectification under Rule 353 RoP (UPC-CFI-0001615/2026). They pointed out that the phrase "EPC member states" extended the publication requirement to countries like Turkey, Spain, the United Kingdom, and Poland. This geographical scope far exceeded the territories of the UPCA states and Switzerland, which were the only jurisdictions analysed in the Court's competence reasoning and the only territories subject to the actual injunction.
How did the single judge address the buried geographical extension?
The Court acknowledged that it had copied the relief directly from the applicant's application. However, the single judge made clear that paragraph 5.4 was intended to cover only the designated UPCA Contracting Member States and Switzerland. Extending the publication order to other EPC member states was entirely inconsistent with the reasoning on competence and the specific orders for delivery up.
The judge noted that while the geographical reach of a publication measure under Article 80 UPCA does not strictly have to coincide with the territorial scope of an injunction, any such divergence would require explicit reasoning. The Court offered a blunt assessment of the applicant's drafting: either the applicant intentionally buried this geographical extension in a supplementary request hoping it would go unnoticed, or the applicant carelessly copied it from a different application. The Court concluded that "either way, it should not be rewarded" and rectified the order to cover only the UPCA Contracting Member States and Switzerland.
What should practitioners change when drafting requests for publication under Article 80 UPCA?
Applicants should ensure that the territorial scope of every supplementary request matches the established jurisdiction and the primary injunction. If an applicant genuinely seeks a publication order that covers a broader geographical area than the injunction itself, this divergence should be explicitly pleaded and justified in the application. Copying broad boilerplate language referring to "EPC member states" into UPC applications can be a risky practice. As these two orders show, the Court actively polices the boundaries of its relief, and attempting to slip a broader territorial scope past the Court may result in a swift rectification and judicial criticism.