On 3 June 2024, the UPC’s Hamburg Local Division rejected a PI application against UEFA (Union des Associations Européennes de Football) and Kinexon GmBH (a technology partner) in regard to the use of video-assistance referee (VAR) technology at the upcoming European Championship in Germany. The application for preliminary relief concerned EP 1 944 067 (EP 067), which claims a “method and system for detecting and offside situation” by sensing and processing sound signals to determine the moment a player kicks a ball. Dutch company Ballinno issued the proceedings, claiming that UEFA’s method of detecting offside situations infringes EP 067.
Although the written reasons for the decision have not yet been published, following a four-hour hearing, the local division judges – Sabina Klepsh (presiding), Stefan Schilling and Samuel Granata – communicated their decision to deny the PI, not sufficiently persuaded that EP 067 was infringed. The judges had also not been persuaded that Ballinno had acted with sufficient urgency. The application was made less than two months ahead of UEFA’s EURO 2024 tournament, which kicks off on 14 June 2024. An appeal is possible, however, a decision would most likely come too late to prevent the use of the VAR technology at EURO 2024. It is understood that an invalidity action against EP 067 has been filed at the Paris Central Division of the UPC.
Another factor contributing to the decision to reject the PI included the patentee’s lack of assets. Ballinno is a Dutch NPE (non-practicing entity) and was assigned EP 067 in February 2024 by Invit-BV, a Dutch SME. This assignment came following pre-trial correspondence regarding the possible patent infringement, with Ballinno notably appearing to have no known assets other than EP 067. In an Order of 14 May 2024, Ballinno was instructed by the panel of judges to provide security for legal costs of UEFA and Kinexion based on an insolvency risk present due to Ballinno failing to provide proof they were financially capable of reimbursing recoverable costs. This balance of commercial interests in the assessment of proportionality and harm may not be encouraging for NPEs looking to make use of the UPC.
With the application filed on 18 April 2024, the UPC has demonstrated its ability to rapidly assess and hand down PI decisions, with this judgment coming more quickly than any previous ruling. Most PI decisions made by the UPC have been issued within three to four months of filing. Some of the UPC judges have given guidance at conferences that if a party wants an application dealt with expeditiously, it is preferable to use English as it is a working language for most of the judges.
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