Tackling the “divisional game”: UPC Milan Central Division asserts jurisdiction to counter tactical patent surrender
05 November 2026
On 22 October 2026, the Milan Central Division of the Unified Patent Court issued a procedural order in Sandoz v Novo Nordisk (UPC_CFI_2221/2026). The order deals with the so-called “divisional game”: a patentee surrenders a contested patent to avoid an adverse validity ruling, while keeping substantially the same protection alive through divisional applications.
Sandoz is seeking revocation of Unitary Patent EP 3 689 365, which covers once-weekly 1.0 mg semaglutide for type 2 diabetes. Besides revocation, Sandoz filed three additional requests aimed at stopping Novo Nordisk from withdrawing the patent at the EPO while pursuing the same subject-matter through divisionals, such as the pending EP 4 406 593. Novo Nordisk objected that these requests fell outside the UPC’s jurisdiction under Article 32(1) UPCA.
What the Court decided
No abstract declarations of obviousness (Request 5). The Court found this request manifestly inadmissible. It was not tied to an identifiable right, product or activity, and it could affect third parties who would have no chance to be heard.
Arrow-type relief against divisionals (Request 6). This request falls within the Court’s jurisdiction. Filing divisionals is legitimate in itself. Using them to escape judicial scrutiny while keeping the same exclusionary effect may, however, amount to an abuse of rights. Under Rule 360 RoP, a tactical surrender of the patent does not automatically make the action devoid of purpose. Where the claimant still has a legitimate interest, the Court may rule on the merits. A patentee who later seeks provisional measures on a divisional would have to disclose that ruling (Rule 206 RoP). Admissibility and merits will be decided in the main proceedings.
Protective measures against surrender (Request 7). Under Article 32(1)(b) and (d) UPCA and Article 47 of the EU Charter, the Central Division has jurisdiction to order measures that preserve the subject-matter of a pending revocation action. It did not grant the order, though, because there was not yet concrete evidence that the divisional game was actually being played.
Why it matters The order is preliminary, the Court expressly found no misconduct by Novo Nordisk, and leave to appeal was granted. Even so, it shows that the UPC is prepared to protect the effectiveness of its revocation jurisdiction. This fits a wider trend: in 2024 the European Commission fined Teva €462.6 million partly for strategic divisional filings (under appeal, Case T-19/25). Guidance from the UPC Court of Appeal will be decisive.
Tackling the “divisional game”: UPC Milan Central Division asserts jurisdiction to counter tactical patent surrender
In Sandoz v Novo Nordisk, the UPC Milan Central Division signals it will not let tactical patent surrender and divisional filings frustrate its revocation proceedings.
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