When assessing urgency, it is relevant when the applicant was able to physically obtain and examine the potentially infringing product, provided that the applicant was not able, on the basis of other information obtained earlier, such as drawings, to determine with sufficient certainty whether the potentially infringing product infringes the patent in suit. Bei Beurteilung der Dringlichkeit ist darauf abzustellen, wann die Antragstellerin das potenzielle Verletzungsprodukt physisch erlangen und untersuchen konnte, falls sie aus zuvor erlangten anderen Informationen, wie zB Zeichnungen, nicht in der Lage war, mit hinreichender Sicherheit festzustellen, ob eine Verletzung des Antragspatents durch das potenzielle Verletzungsprodukt erfolgt.

The Hamburg Local Division granted a preliminary injunction over a battery-powered surgical stapling instrument, holding it more likely than not that claim 1 is literally infringed and that the patent is valid. The decision's headnote concerns urgency: the moment at which the applicant was able physically to obtain and examine the accused product is the relevant date, provided that earlier information such as drawings did not allow it to determine with sufficient certainty whether the product infringes. Applying the Court of Appeal's framework, the Court held that a respondent invoking delay must show both that the accused product is essentially identical to an earlier available product as regards the patent in suit and that the earlier product gave reasonable cause to investigate; a blanket assertion of 'identical construction' without reference to the concrete claim features does not meet that standard. The Court also confirmed that a patentee is under no general market-monitoring duty and is not obliged to assert all potentially relevant patents against one embodiment, expressly preferring the Court of Appeal's position over the OLG Düsseldorf's Insulinpumpe line. Passive standing of the EU authorised representative under Art. 11 of the Medical Devices Regulation was affirmed by analogy to an online service provider, and the pending CJEU reference on that very question was met not with a stay but with an order for security covering the risk that the first-instance ruling is later reversed.

ENGLISH: 1. The inclusion of 51 auxiliary claims in the counterclaim for revocation may be justified in individual cases where the legal basis of the patent in suit is subject to multiple challenges. 2. An amendment to the counterclaim for revocation, adding a further claim to be revoked, must be rejected if the patent proprietor otherwise would be put in a situation where he/she would not be given sufficient time to properly address the new attack.

LD Hamburg (Klepsch presiding + JR) revoked claims 1, 2, 3, 7 and 9 of Teleflex's EP 2 077 811 (clay-based hemostatic gauze, Quikclot product family) for ten territories on the counterclaim of Speed Care Mineral. The granted claims lack novelty over D3 (WO 2006/088912, Virginia Commonwealth University) and, in the alternative, lack inventive step over D3 in combination with N2 (WO 92/16681, Weyerhaeuser). Both subsets of 51 auxiliary requests failed: AR 1-27 are inadmissible as Art. 54(5) EPC second-medical-use claims because the device features (gauze, binder) take the claim out of the substance/composition category; AR 1a-26a fall variously to Art. 123(2) EPC added matter (most notably AR 26a: extracting the sponge feature from claim 44 without the release agent and other associated structural context is an impermissible intermediate generalization), to D3 novelty, or to D3+N2 obviousness. Two procedural holdings are headnoted: (i) 51 auxiliary requests can be reasonable in number where the patent is subject to multiple validity challenges (Art. 54/56 EPC, Art. 123(2) EPC, Art. 84 EPC, Art. 83 EPC) and the requests divide into intelligible subgroups (here a clay-material-and-medical-use line and a hemostatic-device line); (ii) a R. 263 RoP amendment to the counterclaim adding a further claim to be revoked must be rejected where it would not leave the patent proprietor sufficient time to address the new attack before the oral hearing. The Court applied the CoA's inventive-step framework from Amgen/Sanofi (UPC_CoA_528-529/2024) and Meril/Edwards (UPC_CoA_464/2024) and the added-matter direct-and-unambiguous test (UPC_CoA_764/2024), and rejected the subsequent-amendment application under R. 30.2 RoP (CD Paris UPC_CFI_412/2023, UPC_CFI_255/2023; LD Düsseldorf UPC_CFI_733/2024, UPC_CFI_255/2025; LD Mannheim UPC_CFI_210/2023). Costs to claimant; value in dispute set at EUR 1,000,000 each.

The Paris Central Division partially revoked a patent due to a lack of industrial application and upheld the patent with a limitation introduced by the Defendant during the proceedings. The Court went into detail regarding claim construction and the consideration of drawings as well as the order in which auxiliary requests are to be addressed.

1. Article 57 ‘EPC’, according to which “an invention shall be considered as susceptible of industrial application if it can be made or used in any kind of industry, including agriculture” must be interpreted as meaning that an invention or an application for a patent for an alleged invention which would not comply with the generally accepted laws of physics falls within its scope because it cannot be used and therefore lacks industrial application. 2. Drawings must always be used as explanatory aids for the interpretation of the patent claim but cannot be used to extract a characteristic when definitively and unambiguously contradicted by the description. 3. In the event that the patent proprietor applies to amend the patent and proposes more alternative auxiliary requests, these auxiliary requests must be addressed in the order indicated by the applicant, in the absence of specific elements and/or requests suggesting otherwise

Application for provisional measures. Mushroom strain is not considered to be excluded from patentability (Article 53(b) EPC. Infringement. Measures granted.

The The Hague LD granted provisional measures in Amycel's PI action concerning EP 1 993 350 B2 (mushroom strain BR06 / Heirloom) against a Polish mushroom farmer selling the 'Cayene' strain into UPC territory. The panel — including a TQJ — rejected the defendant's challenge under Art. 53(b) EPC: mushrooms fall within the fungi kingdom, taxonomically distinct from plants and animals, and the strict interpretation of the exclusion (affirmed by EPO EBA G 2/12 'Tomatoes II') combined with the EPO legislative record (CA/56/17, para. 64) confirms that fungi and yeasts are not covered. On novelty, the Court found all three asserted attacks (Barnakalapu BKU-100, SP-B1, AA-0096/ARP23) factually unsubstantiated. On infringement — where both parties agreed genetic identity was the test — the Court accepted AFLP and WGS analyses showing Cayene and BR06 within the technical-replicate similarity range (~99.88%) as sufficient to establish genetic identity within experimental error. The Court rejected the unreasonable-delay defence, holding that Amycel had acted diligently by preparing fresh genetic and morphological evidence after becoming aware of UPC-territory sales in late July 2023. Granted measures include an injunction (penalty up to EUR 50,000/day), delivery-up, an information order (penalty up to EUR 5,000/day), and an interim cost award of EUR 11,000 (court fees only); enforcement is conditional on Amycel lodging EUR 200,000 security under R. 211.5 RoP.