The Hague Local Division (single judge) granted provisional measures for the UPC territory and Switzerland against a US manufacturer and its Dutch-domiciled online retailer. The Court took jurisdiction over the US defendant because its website directed European customers to third-party retailers through which test purchases were delivered, and extended the Swiss part of the claim against it through the Dutch anchor defendant on the risk of irreconcilable decisions. Urgency was met because the patentee has no general duty to monitor the market and time runs from actual knowledge. On the merits, the Court construed the purpose-limited use claim at the priority date (unaffected by a later taxonomic reclassification of the claimed organism, and not limited to the strain of an example), held that the claimed organism need only contribute meaningfully to the effect rather than achieve it alone, treated the TBA-upheld patent as presumptively valid, and found infringement more likely than not on the defendants' own marketing statements. Information on quantities was ordered at the provisional stage and the defendants' request for security for enforcement was refused.

The Munich Local Division decided an infringement action and a counterclaim for revocation on a unitary patent for a rapid-entry shoe. On claim construction it held that the binding nature of the claim under Art. 69(1) EPC bars reading an unwritten limiting feature into the claim where description and drawings give no clear indication of it, and that the Court is not bound by the parties' constructions because construction is a matter of law. Claim 1 as granted was anticipated, but the patent was maintained as limited by an auxiliary request: the added-matter and sufficiency attacks failed, and the inventive-step attacks failed because the counterclaimants did not plead a pointer or motivation from any starting point, which in light of Arts. 42, 54 and 76(2) UPCA the Court will not supply itself. Only one of four accused models infringed; for the others the functional feature was not shown under the practical forces of foot entry. The Court ordered injunction, information with supporting invoices, corrective measures and damages liability, made the corrective measures enforceable only against a EUR 5m security because of the limitation, the pending EPO opposition and the mixed infringement result, refused provisional damages and publication, and ordered each party to bear its own costs.

1. Die erstmals im Zwischenverfahren in der Verletzungsklage eingeführten Anträge, gestützt auf den Umfang des Streitpatents im Rahmen der Hilfsanträge und der damit verbundene Vortrag sind nicht zuzulassen. 2. Es muss möglich sein, wenn abhängige Ansprüche oder geänderte Anspruchsfassungen Gegenstand von Hilfsanträgen sind, die Verletzungsklage entsprechend anzupassen. Von dieser Möglichkeit hat die Klägerin aber zeitgleich mit der Geltendmachung der Änderungen des Streitpatents Gebrauch zu machen. 3. Sofern die Klägerin nicht substantiiert vorträgt, dass sie bei einem mehrfachen Rückbezug alle rückbezogenen Ansprüche in Kombination verteidigen möchte, stützt sich die Rechtsbestandsprüfung bei entsprechenden Rückbezügen lediglich auf den Hauptanspruch. Sofern nicht substantiiert vorgetragen wird, welche konkreten Anspruchskombinationen für rechtsbeständig gehalten werden, umfasst die Rechtsbestandsprüfung bei einem mehrfachen Rückbezug sämtliche vom Wortlaut des abhängigen Anspruchs erfassten Kombinationen. Erweist eine der erfassten Kombinationen sich als nicht rechtbeständig, ist der abhängige Anspruch insgesamt nicht rechtsbeständig. 1. The claims introduced for the first time during the interim proceedings in the infringement action, based on the scope of the patent in dispute within the framework of the auxiliary requests and the related submission of facts, are not admissible. 2. Where dependent claims or amended claim formulations form the subject-matter of auxiliary requests, it must be possible to amend the infringement action accordingly. However, the Claimant must make use of this option at the same time as introducing 2.amendments to the patent at issue. 3. Unless the Claimant submits a substantiated argument that, in the case of multiple crossreferences, it wishes to defend all cross-referenced claims in combination, the examination of the validity of the patent at dispute is based solely on the main claim. Unless it is substantiated which specific combinations of claims are considered to be valid, the validity assessment in the case of multiple cross-references shall cover all combinations covered by the wording of the dependent claim. If a single one of the combinations covered proves to be invalid, the dependent claim as a whole is invalid.

Panel 2 of the Düsseldorf Local Division largely revoked a patent on a milk-frothing device and dismissed the parallel infringement action. It held that a patentee which, in the interim procedure, first bases infringement requests on its auxiliary requests is too late under R. 263, R. 30.2 and R. 9.2 RoP: the infringement case must be adapted at the same time as the application to amend is filed. Following the CoA in Fujifilm v Kodak, it held that where a patentee defends multiply-dependent claims without specifying which combinations it considers valid, the validity review covers every combination the claim wording encompasses, and one invalid combination makes the dependent claim invalid as a whole. 'A heating element' was construed generically, not as a numerical limitation, which brought the claim within the prior art; a cited document incorporated by reference was treated as part of the anticipating disclosure. Only dependent claim 12 survived, and its infringement was not adequately pleaded.

1-Defendant 3 is the shareholder of Defendants 2, 4 and 5. However, there is no evidence of its active, operational involvement or knowledge, in relation to the infringing acts committed by these three Defendants. 2-The Claimant intends to limit the injunction to patients whose treatment has not yet begun or to treatments that have been interrupted for any reason (Reply to SoD, para 6.24). The Claimant does not intend to seek an injunction in respect of ongoing treatments which do not, in the future, include a Torque Ridge feature. Furthermore, Defendants’ infringing products are not the only ones available on the market and do not represent an improvement on existing treatment methods. The Claimant has furthermore acknowledged that appliances already delivered to patients are not subject to corrective measures. Taking into account these considerations, the corrective measures requested by the Claimant are proportionate.

The Paris Local Division upheld a unitary patent on orthodontic clear aligners against attacks for insufficiency, added matter (intermediate generalisation) and lack of inventive step, applying the Court of Appeal's frameworks from NanoString, Amgen v Sanofi, Meril v Edwards and Abbott v Sibio. Construing the claim with the patent as its own lexicon, it read 'buccal' as 'facial', covering anterior as well as posterior teeth, which decided literal infringement. Liability in the UPC territory was imposed on the operating group companies but refused for the pure holding company, and the UK claims were dismissed because the claimant had not substantiated UK law in its statement of claim. The Court ordered a permanent injunction, recall, removal, destruction and information under Art. 67 UPCA, awarded damages only from grant because no compensation for the provisional-protection period had been requested or evidenced, refused publication of the decision and refused security for enforcement.

1. The party alleging added matter must identify, by means of a specific comparison, the subject-matter of the original disclosure that is said to have been extended in the later application or divisional patent. The mere fact that the original application contains numerous embodiments and theoretically allows a very large number of combinations does not establish added matter. Although this may raise issues of clarity or drafting technique, an extension of subject-matter arises only where the granted claim conveys technical information that the skilled person could not derive directly and unambiguously from the application as filed, contrary to Articles 123(2) and 138(1)(c) EPC. Procedural fairness under recital 5 of the Preamble to the RoP requires each party to plead its grounds of challenge clearly and with sufficient specificity. The Court can neither cure deficiencies in those grounds nor supplement them of its own motion, since doing so would substitute the Court for the challenging party and compromise its impartiality. 2. Where the alleged contribution to the art lies in the identification of a physiologically or pathologically distinct patient subgroup, the patent must provide sufficient technical information to identify that subgroup and to make it credible that the medicinal product is suitable for the claimed therapeutic use in that subgroup. In that context, the precise therapeutic dosage need not be stated in the independent claim, provided that the skilled person, on the basis of the patent, the prior art and common general knowledge, can select a safe and effective dose without undue burden in the exercise of their routine competence. 3. An inventive-step objection cannot be sustained by reconstructing the claimed solution with knowledge of the patent. Where an obviousness attack can be constructed only by selecting and combining numerous (more than 10) disclosures addressing different technical questions, none of which supplies the missing pointer or gives the skilled person a reason to consult the others, the resulting mosaic is indicative of an ex post facto analysis rather than the course the skilled person would have followed at the effective date.

The Milan Central Division dismissed a generic company's revocation action against a second-medical-use patent defined by a patient subgroup, maintaining it in a form the proprietor had unconditionally limited to match its amendment before the EPO Opposition Division. Late-filed prior art and new attacks introduced in the rejoinder, partly drawn from the EPO's preliminary opinion, were excluded under the front-loaded procedure, and the Court held that an EPO Board of Appeal decision on a parent patent has no res judicata effect before the UPC. It held that a generic added-matter attack resting on the number of combinations in the parent application was insufficiently substantiated (while examining it anyway), that the patent was sufficiently disclosed although claim 1 recites no dose and the trials excluded some patients, and that a patient subgroup confers novelty under Art. 54(5) EPC where its defining characteristics are functionally linked to an improved therapeutic effect. Inventive step was upheld because no realistic starting point, alone or combined with over ten further documents, pointed to selecting the subgroup with a reasonable expectation of success; such a mosaic indicates hindsight.

The Düsseldorf Local Division dismissed both Inficon's infringement action against Elitech's METRUM sniffing leak detector and Elitech's counterclaim for revocation of a patent on a sniffing leak detector with a remote reference gas inlet and a buffer chamber that homogeneously mixes reference gas. Construing the claim functionally and refusing to limit it by figures or embodiments, the Court held that the counterclaimant failed on added matter, novelty and inventive step because no prior art disclosed a buffer chamber permitting homogeneous mixing and no pointer or motivation to combine documents was presented; once the independent claim stood, no decision on the dependent claims was needed. On infringement, the claimant's measurements showed delayed detection but not that the housing itself retained and homogeneously mixed gas, and because the measurements were inconclusive from the outset, the defendants' failure to supply their own measurements did not amount to an admission under R. 171.2 RoP. An interim award of costs under R. 150.2 RoP was refused because success was split.

The Munich LD (Panel 1a) decided Maxell's infringement action and Samsung's counterclaim for revocation together and revoked the patent in its entirety. Claims 1 and 8 as granted lacked novelty over a single prior-art document, the Court holding that a disclosed operation panel for controlling content played back on the external device self-evidently discloses the claimed display of operating information and the transmission of the second user operation. Applying the CoA inventive-step framework of Meril v Edwards and Amgen v Sanofi, the Court found auxiliary requests 3 to 9c obvious over two combinations of prior art, adopting The Hague LD's rule that a plurality of routine modifications without functional interdependency is a mere aggregation of obvious features; auxiliary requests 12 and 13 failed for added matter because the application disclosed information indicating a UTF-8 character encoding item, not information that is itself UTF-8-encoded. The infringement action was dismissed without an infringement analysis, and costs followed the parties' agreement at the EUR 600,000 representation-cost ceiling plus the court fee.

The Munich Local Division (Panel 2) upheld EP 4 213 033 as granted against a counterclaim for revocation and found the Netflix streaming software to indirectly infringe the claimed client-side playback method under Art. 26(1) UPCA. On validity the panel applied the Court of Appeal's added-matter test (Abbott v Sibio: a feature of an embodiment may be omitted where it is not objectively necessary for the purpose of the claimed feature), held the primary reference not to disclose a 'media sequence' at all, and rejected every inventive-step attack for want of a motivation to arrive at a request queue that is flushed on a user instruction, expressly departing from the EPO Opposition Division's preliminary opinion on that point. On infringement the panel held that non-physical software is a 'means' under Art. 26(1) UPCA, that the client is the device together with the software so a queue maintained by the browser still counts, and that a claimant who has analysed one software variant and asserts the others are identical in the relevant functions has pleaded sufficiently unless the defendant contests specific differences. On remedies the panel held that means under Art. 26 UPCA are 'infringing products' for the information claim under Art. 67(1) UPCA, that no confidentiality restriction attaches to information ordered under Art. 67 UPCA and R. 191 RoP without an R. 262A RoP application, that penalty payments may be framed as minimum amounts per day, and that no enforcement security was warranted because the defendants' evidence of the claimant's finances was insufficient and the patent expires within eighteen months. The Court also admitted the EPO Opposition Division's preliminary opinion under R. 36 RoP so that Office and Court decide on the same basis.

HEADNOTES: The Court considers that, in the specific circumstances of the present case, the new defence arguments submitted by the respondents for the first time in their last written submission concerning the interpretation and infringement of feature 1.6 are admissible. For the purpose of assessing the admissibility of the new arguments raised by the respondents with regard to the interpretation and infringement of feature 1.6, the following considerations are relevant. First, it should be emphasised that claim construction is a matter of law, on which the Court may therefore also elaborate ex officio. The classification of this issue as a matter of law also entails that, had this Court held the respondents’ new submissions on this point to be inadmissible at first instance, the Court of Appeal could, in all likelihood and in full compliance with the adversarial principle, have taken those same arguments into consideration, with the practical consequence that one level of jurisdiction on a substantive issue in the present dispute would have been lost (for such a case, specifically related to non-infringement arguments, see UPC CoA no. 36/2026, order of 8 July 2026, para. 158 et seq.). At the same time, it is essential and indispensable that the opposing party is always given the opportunity to be heard, in accordance with the adversarial principle and the right of defence. The respondents introduced this new argument in their last written submission, filed one month before the oral hearing, without relying on any additional factual element or document that had not been on the case file from the outset of the proceedings. Against that procedural background, significance must also be attached to the applicant’s conduct, since the applicant merely objected to the late filing, without requesting, even in the alternative or as a subsidiary request, the grant of a short time limit to file a reply confined to that specific issue. During the oral hearing, the applicant was in fact given an adequate opportunity to respond to that specific argument, both as regards the interpretation of the claim and as regards infringement of the patent. All the foregoing considerations must be assessed in the specific context of proceedings for provisional measures, where there is considerable time pressure and the parties are required to organise their arguments within very short time limits. A different conclusion would amount to an overly rigid application of the front-loaded character of UPC proceedings, at least in the specific context of proceedings for provisional measures, with an excessive and in any event disproportionate impairment of the effectiveness of the right of defence.

The Milan Local Division granted a UPC-wide preliminary injunction over a continuous glucose monitoring system, holding it more likely than not that the patent is valid and literally infringed. It first admitted the respondents' new claim-construction and non-infringement arguments filed one month before the hearing: claim construction is a matter of law the Court may address ex officio, refusing the arguments would risk losing an instance because the Court of Appeal could take them up, and in provisional-measures proceedings a rigid application of front-loading would disproportionately impair the right of defence. On construction it adopted a balanced approach — functional claim wording read in the light of the disclosed embodiment but not confined to its structural detail — and rejected a limitation to a movable inner housing that was inferable only from the shading of a drawing and named nowhere in the description. All three validity attacks failed at the prima facie standard, the insufficiency case being undermined by the respondents' own inventive-step case that a workable alternative to the disclosed mechanism was obvious, and the inventive-step attack failing because the chosen starting point taught away from adding a complex inserter. The EU authorised representative under Art. 11 MDR was held to be an infringer within Art. 25 and 63 UPCA. The balance of interests favoured the applicant because of price erosion in tender-based and insurance-based reimbursement segments, and the interim costs award was moderated to 30% of the ceiling because the respondents had honoured an undertaking to give two months' notice before market entry.

The Düsseldorf Local Division revoked the granted claims of a media-sharing patent for lack of novelty, upheld it in the wording of the tenth auxiliary request examined and found indirect infringement of that amended claim by a streaming service. The order on information and accounting is the substantial part: the right under Art. 67 UPCA with Art. 68(3)(a) and (b) UPCA and R. 191 RoP covers supporting documents and, at the Court's discretion, confirmation by a sworn auditor or an affidavit, for which no express legal basis in the UPCA or the Rules is needed because it is a matter of evidence. Since the Court of Appeal has held that there is no implicit limitation on the use of information obtained under Art. 67 UPCA, a use limitation was written into the operative part, and access was restricted to outside counsel and two named representatives by a separate confidentiality order under R. 262A RoP, which applies at least mutatis mutandis to information a party must disclose under a decision rather than information in its own pleadings. Enforcement security was refused because the defendants put forward nothing to justify it and did not answer the claimant's evidence of solvency, and the interim award of damages was dismissed as unjustified.

(i) The review of the admissibility of an Application to amend a patent under R. 30.1 RoP shall be limited to the assessment as to whether the applicant to the amendment has actually filed an explanation regarding the requirements of Art. 84 and 123(2), (3) EPC, and not whether said explanation is sufficiently convincing in view of the assessment of the validity of the patent in its amended form, which remains to be decided when assessing said validity on the merits rather than when assessing the admissibility of such an Application. (ii) As a general rule, in case of claim amendments, the entire patent description which remains unamended may be used as explanatory aid for the interpretation of a patent claim. (iii) It is for the party relying on facts to prove those facts and to provide evidence that the disputed acts would amount to acts of infringement under the applicable law when assessing whether the part of a European patent outside the territories of UPCA Contracting Member States is likely infringed.

The Court of Appeal upheld the revocation of the Dutch, French, German and Italian parts of a patent for lack of inventive step and the dismissal of the infringement action that followed from it. It set the standard of review for an application to amend a patent under R. 30.1 RoP: admissibility asks only whether the proprietor actually filed an explanation on Art. 84 and 123(2), (3) EPC, and whether that explanation convinces belongs to the assessment of validity on the merits. On claim construction the Court held that where the claims are amended and the description is not, the unamended description may still serve as an explanatory aid, and that a feature must not be reduced to an embodiment of the specification. On the part of the patent outside the UPCA Contracting Member States the Court confirmed that it has jurisdiction over infringement in Poland under Art. 31 UPCA with Art. 4 and 8 Brussels Ia, notwithstanding the exclusive jurisdiction over validity in Art. 24(4) Brussels Ia, but dismissed the claim because the claimant proved neither the facts nor that those facts amount to infringement under Polish law, which Rome II and Art. 24(2)(a) UPCA make applicable.

Für eine unmittelbare Verletzung eines Erzeugnisanspruchs ist entscheidend, ob die angegriffene Ausführungsform aufgrund ihrer Beschaffenheit und ihrer Verwendungstauglichkeit objektiv in der Lage ist, die Merkmale des Patentanspruchs zu erfüllen. When determining whether a product claim has been directly infringed, the decisive factor is whether the challenged embodiment is objectively capable of fulfilling the features of the patent claim, given its nature and suitability for use.

The Düsseldorf Local Division found direct literal infringement of a product claim to a rotary osteotome and dismissed the revocation counterclaim in full. Its headnote states the test for direct infringement of a product claim: what matters is whether the challenged embodiment is objectively capable, by its nature and its suitability for use, of fulfilling the features of the claim. The defendants' argument that their burs are only ever rotated in the direction in which the alleged cutting faces trail therefore failed, since nothing prevented rotation in the other direction and their own brochure warned that reverse rotation produces high cutting performance. On the pleading standard, the Court held that once the claimant has substantiated infringement with a detailed party expert report, a broad denial does not put the allegation in issue; the defendants had to answer with comparable detail, if necessary with an expert report of their own. Standing was established under Art. 47(2) UPCA through a chain of exclusive licence and sublicence, whose validity despite identical signatories on both sides was governed by Michigan law and unrebutted. On validity, prior art recommending a rake angle of about 0° was held to point away from making that angle negative, so the person skilled in the art would not, rather than merely could not, arrive at the claim.

1. Es ist zulässig, eine Widerklage auf Nichtigerklärung davon abhängig zu machen, dass eine Verletzung des Patents festgestellt wird. 2. Der Übergang von einer bedingungslosen Widerklage auf Nichtigerklärung zu einer, die vom Eintritt einer verfahrensinternen Voraussetzung (d. h. einer Feststellung der Patentverletzung durch das Gericht) abhängt, bedeutet weiterhin, dass die Widerklage gemäß R 263.3 VerfO bedingungslos beschränkt ist (bleibt). 3. Wird gemäß dem Antrag der Widerklägerin keine Entscheidung über die Nichtigkeitswiderklage getroffen, hat die Widerklägerin grundsätzlich die Kosten der Nichtigkeitswiderklage zu tragen.

The Munich Local Division dismissed an infringement action and, on the defendants' own request, took no decision on their revocation counterclaim. It first dismissed the preliminary objection: it is exclusively competent under Art. 32 UPCA, and neither a declaration of no jurisdiction nor a stay under Art. 30 Brussels Ia was appropriate, because the earlier-seised national action concerns a divisional with different subject matter and the alleged acts relate to different territories, so the situation of fact and law is not the same and there is no risk of irreconcilable decisions. Construing the asserted claims under Art. 69 EPC and its Protocol, the panel read a conditional method step in the language of programming logic on an IF...THEN...(ELSE) pattern, so the claimed determination must be the direct and immediate cause of the claimed reaction; conduct triggered by any other condition falls outside the claim, and the claimant's evidence did not establish the disputed features with the necessary certainty. A late application to produce the defendants' source code was refused for want of feature-by-feature pleading of the information gap. The Court held that making the decision on a revocation counterclaim conditional on a finding of infringement is permissible and still an unconditional limitation under R. 263.3 RoP, but that the counterclaimant then bears that counterclaim's costs as unnecessary costs under Art. 69(3) UPCA, producing a 60/40 cost split against the defendants notwithstanding their win on infringement.

1) One situation where added matter may arise is when claimed subject-matter is obtained by importing one or more features from a certain embodiment in the application into a claim, while omitting one or more other features of this embodiment which were presented in combination with the imported feature(s) in the disclosure of this embodiment. This is referred to as an ’intermediate generalisation’. This is generally considered to be unallowable if there is a clearly recognisable functional or structural relationship among the omitted feature(s) and the claim features, also referred to ’an extricable link’ between the omitted feature(s) and the claim features. 2) The technical effect that the invention aims to achieve, and whether an omitted feature contributes thereto, is relevant for the assessment of added matter. It is relevant when considering whether the skilled person would understand from the disclosure of the application as a whole that there is a structural or functional relationship between the omitted feature and the other features of the claimed embodiment or, in other words, when considering whether there is an inextricable link with such other features or, yet differently worded, whether such omitted feature is essential to the invention.

The Court of Appeal dismissed Sibio's appeal against the Paris Central Division's refusal to revoke Abbott's patent, upholding the patent as granted on both maintained grounds. On added matter under Art. 138(1)(c) EPC the Court held, in two headnotes, that an intermediate generalisation is unallowable only where a clearly recognisable functional or structural relationship — an inextricable link — connects the omitted feature to the claim features, and that the technical effect the invention aims to achieve, and whether the omitted feature contributes to it, is relevant to that assessment [33], [35]. It further held that the EPO's categorisation of the objection as an 'intermediate generalisation' or as an 'omission of an essential element' is irrelevant, because the only test is the gold standard of whether the claim covers subject-matter extending beyond the application as filed, and that R. 222.2 RoP does not bar a new legal argument on appeal that rests on the same facts and evidence [34]. Applying the Amgen v Sanofi & Regeneron inventive-step framework, the Court rejected the obviousness attack at the threshold: an embodiment that cannot be used to solve the objective problem is not a realistic starting point, so the attack failed before any combination question arose [71]. As the unsuccessful party Sibio bears Abbott's costs of the appeal [79].

1. The fact that the applicant relies, as its main request, on a claim set that is narrower than the claims as granted in the patent in suit, namely a combination of Claims 1 and 2 of the patent in suit, does not preclude the ordering of preliminary measures. 2. If, in proceedings regarding preliminary measures, auxiliary requests are submitted for the first time in the reply brief and concern the addition of a feature that is not, in this form, the subject matter of a dependent claim, the defendants would have had only a very short period of time to prepare their defense, particularly with regard to the issue of the patent's validity, thereby significantly restricting their ability to defend themselves. Such auxiliary requests shall therefore not be admitted. 1. Der Umstand, dass die Antragstellerin als Hauptantrag eine gegenüber der erteilten Fassung des Antragspatents eingeschränkte Anspruchsfassung – nämlich eine Kombination der Ansprüche 1 und 2 des Antragspatents – geltend macht, steht der Anordnung einstweiliger Maßnahmen nicht entgegen. 2. Werden Hilfsanträge im Eilverfahren erst in der Replik gestellt und betreffen die Hinzufügung eines Merkmals, welches in dieser Form nicht Gegenstand eines abhängigen Anspruchs ist, wäre den Antragsgegnerinnen eine Verteidigung insbesondere mit Blick auf die Frage des Rechtsbestandes nur in einem sehr kurzen Zeitraum möglich gewesen, was ihre Verteidigungsmöglichkeit erheblich einschränkt. Solche Hilfsanträge können daher nicht zugelassen werden.

The Hamburg Local Division granted provisional measures on a claim version narrower than the patent as granted, holding that asserting an unentered combination of granted claims 1 and 2 does not preclude an order under R. 211.2 RoP, which refers to the patent in question and not to the patent as granted (following CoA Onward v Niche). Because that version was never examined in the grant proceedings there is no prima facie presumption of validity, so the Court had to satisfy itself positively that the asserted version is more likely valid than not; four novelty attacks, an inventive-step attack and an added-matter attack all failed. Auxiliary requests raised for the first time in the reply, adding a feature that is not as such the subject of a dependent claim, were refused under R. 263.2 RoP because they would have left the defendants only a very short time to defend on validity. Direct infringement under Art. 25(a) UPCA and indirect infringement under Art. 26 UPCA were found with sufficient certainty; for the separately marketed components the Court imposed a notice duty rather than a blanket prohibition, since those components can also be used lawfully. Urgency was affirmed one month after grant of the patent, and neither security under R. 211.5 RoP nor a security permitting the defendants to avert enforcement was ordered.

The Paris Local Division declared the patent invalid in its entirety for added matter and dismissed the parallel infringement action without examining the accused products. The application as filed disclosed a single minimum value for the compound notion of bond strength, which the Court held necessarily implies that both the cohesive and the adhesive strength exceed that value; the granted claim recited the minimum for the cohesive strength alone and so embraced embodiments with an adhesive strength below it, an unallowable intermediate generalisation. That ground disposed of the patent, so the Court expressly declined to rule on insufficiency, novelty and inventive step, and did not examine the conditional auxiliary requests because none of them addressed added matter. On construction the Court held that a claim combining compositional features with post-treatment functional properties forms one indivisible whole, and construed the functional term 'non-resealable' by reference to its purpose: it is enough that the restored closure is significantly weaker than the original, so that a consumer can tell the package was opened. Costs followed the event under R. 118.5 RoP and Art. 69 UPCA.

If an NDA between the parties prevents one party from making submissions or producing documents, and the other party, without reasonable justification, refuses to amend the NDA to enable such production, this shall be to the detriment of the latter party. In such cases, if a party refers to steps within the FRAND negotiation programme and the Court is unable to examine these steps due to the other party’s refusal to amend the NDA, the steps will be considered to have been taken in accordance with the Huawei v ZTE judgment.

The Düsseldorf LD found Disney's Disney+ streaming service literally infringed InterDigital's HEVC-essential patent EP 2 449 782, rejected the counterclaim for revocation on all validity grounds, and rejected Disney's FRAND/Art. 102 TFEU defence on three independent grounds — no dominant position shown, the ITU declaration does not cover the asserted claims, and Disney was in any event an unwilling licensee under Huawei v ZTE. On the last point the Court held that where an NDA prevents a party from evidencing its negotiation conduct and the other party unreasonably refuses to lift it, the steps in question are deemed compliant with Huawei v ZTE to the detriment of the refusing party — here Disney. The Court granted the injunction, recall/removal (adapted to streaming, i.e. permanent deletion with proof), and a full Art. 67/68(3) UPCA information and accounting order, all subject to a confidentiality restriction under R. 262A RoP and, for the injunction/recall/removal, an EUR 8 million enforcement security under Art. 82(2) UPCA. An interim damages award was refused as wholly unsubstantiated.

1. A device claim defined by structural features is not, as a rule, limited to the device performing a specific function. For the purposes of assessing the novelty of such a claim, this means that if the prior art discloses a device which fulfils all the structural features of the claim and is at the same time suitable for the purpose specified in the claim, the claim lacks novelty, even if not all the technical effects of the claimed device described in the patent at issue but not claimed are realised in the same way in the prior art. 2. There is no obvious typographical error in the prior art if, from the perspective of a person skilled in the art, it does not seem far-fetched that a particular term is in fact intended in the sense in which it is worded, and it is not immediately apparent to the person skilled in the art that there is a typographical error and that something other than what is stated is intended.

The Munich Central Division partially revoked a unitary patent in a standalone revocation action, holding claim 1 as granted anticipated by Art. 54(3) EPC prior art and maintaining the patent in the form of the first auxiliary request. Its first headnote states the governing rule for device claims: a claim defined exclusively by structural features is as a rule not limited to the device performing a particular function, so novelty falls where the prior art discloses all structural features in a device that is also suitable for the purpose recited in the claim — even if the unclaimed technical effects described in the patent are not achieved in the same way. The second headnote sets a demanding threshold for reading an obvious clerical error into a prior-art document: none exists where it does not appear far-fetched to the skilled person that the term is meant as written and the error is not immediately apparent. Applying the settled rule that dimensions are generally not directly and unambiguously derivable from schematic figures, the panel held the conicity range of the auxiliary request neither explicitly nor implicitly disclosed, and rejected the inventive-step attacks for want of any pointer or motivation. Added matter, priority and clarity objections all failed, and costs were apportioned 70/30 to reflect the substantial degree of revocation.

ENGLISH: "1. A claimant is required to indicate the extent to which revocation of the patent is requested and is required to sufficiently substantiate this request for each of the claims covered by its request (see R. 25.1(a)-(d) RoP). 2. It follows from R. 29A(c) RoP that where the patentee requests that claimant’s request for revocation of several or all claims of the patent is rejected, he is required (whether or not as a subsidiary defence) to identify in a sufficiently substantiated manner which dependent claims it considers to be valid should the independent claim be held invalid (see R. 29A(a)-(c) RoP). 3. If the patentee wishes to rely on a combination of dependent claims that does not directly and specifically follow from their wording, such as where the dependent claims rely on several or even any of the previous claims, the patentee should clearly indicate which combination(s) it considers to be valid, (also) in the language of the patent, should the independent claim be held invalid. 4. It follows from the principles of due process – in a similar manner as provided for in R. 30.1 (c) RoP – that the number of such combinations that the patentee wishes to rely on must be reasonable in number, considering the circumstances of the case. 5. R. 30 RoP does not require that the patentee submit an auxiliary request as a prerequisite for defending dependent claims. An Application to amend the patent is only required if the patentee wishes to maintain its patent with amended wording, i.e. deviating from the wording of the claims as granted, or proposes combinations of dependent claims not explicitly included therein, thereby limiting the scope of the patent as granted. This is not the case where a patentee merely defends the dependent claim(s), including combination(s) already encompassed thereby. 6. If there is no pointer to combine a reasonable starting point with another document, a motivation to take the next step in the direction of the invention cannot be derived from the content of such a combination document itself. Failing a motivation for the skilled person to consult a document it will not become aware of its content, and it cannot be concluded that the skilled person would implement the missing feature disclosed therein. 7. It is not appropriate and proportionate to impose a penalty in case of non-fulfilment of an enforceable monetary obligation. 8. A publication of an own declaration by the infringer on its webpage pursuant to Art. 80 UPCA is justified only in the event of special circumstances which call for such a publication as corrective measure due to ramifications of an infringement which cannot be undone or sufficiently compensated otherwise."

The Court of Appeal set aside a Mannheim Local Division decision that had revoked a patent for the German territory and dismissed the infringement action. Its central holding is procedural: a patentee who defends the granted dependent claims and combinations already encompassed by them needs no R. 30 RoP Application to amend, because R. 29A(c) RoP requires substantiation and not a formal request, and because Art. 65(3) UPCA obliges the Court to maintain a partially valid patent in limited form. On the merits the Court of Appeal itself re-decided validity and infringement: it rejected the public prior use, Art. 54(3) EPC and Art. 54(2) EPC novelty attacks, held the claimed parameter ranges must be assessed as an interrelated whole and that no pointer led the skilled person to combine the starting documents with the secondary documents, and found direct and indirect infringement of the German designation. It confirmed long-arm jurisdiction over the UK designation under Art. 4 and Art. 71b(1) Brussels I bis following BSH v Electrolux, set out a framework for how that jurisdiction is exercised, and then dismissed the UK claim on the merits because the German toll manufacturer never held title to the goods. On remedies it granted the injunction, damages, an interim award, an Art. 67 UPCA information order under existing confidentiality orders, destruction, recall and removal, but refused publication under Art. 80 UPCA and refused any penalty on an enforceable monetary obligation.

ENGLISH: 1. To assess whether a party is the holder of an “exclusive licence” within the meaning of Art. 47(2) UPCA, it is decisive whether a licensee is entitled to solely use and to exclude others, including the patent proprietor, from using the patented invention, which includes, in the case of an infringement, the right to assert claims. This does not necessarily mean that the right to use the patented invention can only be licensed to one exclusive licensee in its entirety and without limitations. An exclusive licence may, for instance, be limited in terms of its geographical scope, field of use or duration. 2. In order for a prior art disclosure to be relevant for novelty, the disclosure must be such that the skilled person can reproduce it using common general knowledge, i.e. the skilled person must be able to carry out the teaching of the prior art. Absent such an enabling disclosure, there is no (complete) technical teaching in the prior art and hence no potentially novelty-destroying disclosure. 3. In case of a mere aggregation of two independent methods, whereby the features of these methods do not interact functionally to produce an effect that goes beyond mere addition in solving the objective problem but are simply juxtaposed, the combination of these two methods, both being not novel or at least non-inventive, cannot be held inventive. The skilled person would, as a matter of routine, combine these two Methods.

The Munich LD (Panel 2) revoked EP 2 401 365 (mRNA reengineering for increased protein production, the patent asserted against BioNTech/Pfizer's Comirnaty COVID-19 vaccines) in its entirety and dismissed both the infringement action and the conditional application to amend across 25 auxiliary requests. Granted claim 1 lacked novelty over both D2 (Matsuda — the second start codon of a bicistronic construct is a 'secondary initiation codon' within the claim) and D1 (WO '374), the Court holding that prior art is only novelty-relevant if it is an enabling disclosure the skilled person can reproduce (Headnote 2). All auxiliary requests failed on inventive step, added matter or clarity — notably AR4 (combining secondary-codon mutation with the miRNA method) was a mere aggregation of two functionally independent methods and therefore not inventive (Headnote 3, applying the CoA Amgen/Sanofi and Meril/Edwards framework). Even had the patent been valid, infringement failed: the exclusive licensee did not prove that any *actual* (as opposed to merely putative) secondary initiation codon was mutated in Comirnaty, because the observed expression increase was attributable to ordinary codon optimisation. On standing the Court gave an autonomous good-faith interpretation of Art. 47(2) UPCA, holding an exclusive licence may be limited by geography, field of use or duration and still confer standing (Headnote 1).