2026-02-19 - LD Vienna - Sabert Corporation Europe et al. v. Messerle et al. - UPC_CFI_26/2025

1. Due to the front-loaded approach of the UPC system R 25.1 RoP requires the counterclaim for revocation to contain an indication of the facts relied on (R 25.1 (c) RoP) and the evidence relied on, where available and an indication of any further evidence which will be offered in support (R 25.1 (d) RoP). The parties are under an obligation to set out their full case as early as possible (Preamble RoP 7, last sentence) and to provide all their legal and factual arguments, and any evidence supporting it in a timely manner. Whenever possible, Counterclaimant is obliged to submit its arguments, facts and attachments in its counterclaim of revocation. Submitting evidence for prior state of the Art or for prior use at a later time requires a reasonable justification regarding to the timeliness. 2. A commercial brochure, as a stand-alone piece of the prior art will be evaluated as such by the person skilled in the art. Already from the outset, obtaining the physical product that is being advertised in a commercial brochure is not a valid approach to establishing the disclosure of the stand-alone publication that the commercial brochure is. 3. According to Art 70 (1) EPC, the text of a European patent in the language of the proceedings shall be the authentic text in any proceedings before the European Patent Office and in any Contracting State. For EP415 the language of the patent is German. Although the language of the proceedings is English the court bases its interpretation und considerations on the German text of the patent in suit and reads in this way the English translations of the patents claims as it is published in EP 3 705 415 B1.

The Vienna LD dismissed both Messerle's infringement action and Sabert's revocation counterclaim regarding EP 3 705 415 (food packaging with cardboard tray and lid). The court interpreted the German term 'Knick' as requiring a visible sharp crease, not a gradual bend, which the Tray2Go product did not have. On validity, the court upheld the patent: D4 (a commercial brochure) was the only admissible prior art — physical product samples and Ebay evidence (Enclosures J, M, N, O, P) were excluded as late-filed. The court established that a commercial brochure is a stand-alone piece of prior art; obtaining the physical product cannot establish the brochure's disclosure content. D4 failed to disclose features on at least two side walls. Inventive step was upheld as no pointer existed to modify D4 toward the claimed solution.