2025-09-11 - LD The Hague - Washtower Ip v. Anonymisiert (vertr. Volkmar HENKE) - UPC_CFI_479/2025

Application for preliminary measures granted regarding cabinets for washing machines. No added matter or lack of inventive step. No undue delay and application is necessary. Balance of interests. Infringement by equivalence. Plastic strip equivalent to metal strip? Harmonised approach, inspired on the doctrines of equivalence applied across UPC Contracting Member States which all share a common foundation. A finding of equivalent patent infringement always requires that the variant performs essentially the same function as the element recited in the claim, with essentially the same result. Also, the protection cannot extend to what is not new or inventive over the prior art. Similarly, legal certainty for third parties and a fair protection for the patentee usually return in the doctrines of equivalence in some way or form as developed in the case law of the UPC Contracting Member States. In view of the above and in the absence of a decision by the Court of Appeal and given that both parties referred to this test without pro-posing or even debating an alternative, the Court sees no reason to deviate from the test it applied in Plant-e v. Arkyne.

The Hague Local Division granted provisional measures over a washing-machine cabinet patent and, in doing so, applied its own Plant-e v Arkyne test for equivalence while arguing for a harmonised UPC doctrine. It held that a finding of equivalent infringement always requires technical-functional equivalence — the substituted means must perform essentially the same function to essentially the same result — and that protection can never extend to what is not new or inventive over the prior art; fair protection and legal certainty are anchored in Art. 1 of the Protocol on the Interpretation of Art. 69 EPC and recur in the national doctrines. On that test a plastic L-shaped strip was held equivalent to the claimed metal strip, because the material is immaterial so long as the strip stops the machine falling, and because a third party cannot genuinely believe it may take the whole teaching by swapping metal for plastic. On the plate-like support feature it held that the claim requires only that one or more plates transmit a meaningful part of the vertical forces, and it rejected static gap tests conducted with water bottles because the defendants never tested during or after a spin cycle. On added matter it concurred with the EPO Board of Appeal that the retaining member is disclosed independently of the cover plate. The information order was confined to what is needed to stop further infringement; prices and quantities were refused for lack of urgency.