Netflix renews bid to suspend DivX patent injunction after EPO revocation

Netflix has made a second application to the Unified Patent Court (UPC) seeking to suspend an injunction obtained by US technology company DivX over a video-streaming patent, following the European Patent Office’s (EPO) decision to revoke the patent in separate opposition proceedings.

Netflix has returned to the UPC with a renewed attempt to suspend enforcement of an injunction granted to DivX in a dispute concerning technology used to progressively stream video content. The latest application, lodged on November 10, concerns European patent EP 4 213 033, which covers a method for the progressive playback of multimedia content. The technology allows media playback to begin while content is still being received from a remote server.

The dispute follows a September 15, 2026, decision by the UPC’s Munich Local Division, which found that Netflix had indirectly infringed the patent through its software. The court granted DivX an injunction and rejected Netflix’s counterclaim seeking revocation of the patent. The ruling covered 18 UPC member states.

Netflix appealed the decision and subsequently sought to suspend its enforcement pending the outcome of the appeal.

EPO revocation complicates the dispute

The proceedings took a significant turn when the EPO’s Opposition Division revoked DivX’s patent following separate opposition proceedings.

The decision followed an opposition hearing held on October 1 and 2, 2026, and contrasted with the Munich Local Division’s earlier assessment, which had rejected Netflix’s validity challenge. Netflix relied on the EPO’s revocation decision in its application to suspend enforcement of the UPC injunction. However, the UPC Court of Appeal rejected Netflix’s first application for suspensive effect in an order dated November 2.

The court emphasized that appeals do not automatically suspend enforcement under Article 74(1) of the Unified Patent Court Agreement. Suspending enforcement requires exceptional circumstances, such as an evident error in the first-instance decision or circumstances demonstrating that enforcement would render the appeal ineffective.

The Court of Appeal found that Netflix had not established sufficient grounds for suspending the injunction. It also concluded that the subsequent EPO revocation did not, by itself, justify suspending enforcement, particularly because the Munich Local Division had already considered the EPO’s preliminary assessment during the infringement proceedings.

The court further noted that the UPC was not required under EU law to give automatic precedence to the EPO Opposition Division’s decision. The patent’s approaching expiry, expected in January 2028, was also relevant to the court’s consideration of DivX’s interest in enforcing its rights.

Netflix makes a second application

Netflix’s latest filing represents a second attempt to obtain suspensive effect while its appeal against the infringement judgment remains ongoing. In an order dated November 11, the UPC Court of Appeal invited DivX to submit its observations on the new application by November 18.

The order does not determine whether Netflix’s request should be granted. Instead, it gives DivX an opportunity to respond before the court considers the application further. The underlying appeal against the Munich Local Division’s infringement judgment also remains unresolved.

Implications for parallel patent proceedings

The dispute highlights the potential complications arising when patent infringement and validity are considered simultaneously by different European intellectual property bodies. Although the EPO Opposition Division has revoked EP 4 213 033, that decision does not automatically suspend enforcement of an existing UPC injunction. The UPC’s approach demonstrates that a subsequent EPO decision does not necessarily override an earlier infringement judgment, particularly where the UPC has already considered the patent’s validity.

The proceedings also raise important questions about the relationship between the EPO’s opposition system and the UPC’s jurisdiction over infringement and revocation disputes, particularly when decisions from the two bodies appear to conflict. The case underlines the importance of coordinating opposition, revocation and infringement strategies across parallel European proceedings.

With Netflix continuing to challenge the injunction and DivX due to respond by November 18, the UPC Court of Appeal’s next decision will be closely watched by businesses involved in European patent litigation.

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