Latest substantive UPC decisions

• 10x Genomics filed an application for preliminary injunction alleging direct and indirect infringement of its EP relating to compositions and methods for analyte detection.
• To decide the application, the Munich LD conducted a thorough assessment of both validity and infringement. It considered the validity of the patent under novelty, inventive step, added matter and sufficiency. The court decided that the patent was valid as, on the balance of probabilities, it had "sufficient certainty" under Article 62(4) UPCA and Rule 211.2 RoP.
• To determine unreasonable delay under Article 62 UPCA, the court must consider (1) when the claimant first became aware of the patent infringement and then (2) when the application was brought. Here, 10x Genomics had requested delay of grant of the EP to be able to benefit from a UP. The court considered the clear advantage of the UP justified the delay, and the action was brought on the first possible day.
• The court also considered the balance of the parties' interests in deciding whether to grant the order (in particular the respective harm). The court explained that it would be more likely to grant an injunction where damages would not be an adequate remedy and where there was greater certainty that the patent would be valid. However, if when weighing the interests there may be a point to undermine the court's conviction, then the court may be more lenient and only order security or even dismissal of the request.
• Upon consideration of the various factors the court granted a preliminary injunction, closely tracking the words of the claims of the EP, with a penalty of €250,000 for each infringement if breached. No security was required from 10x Genomics.

• CUP&CINO filed an application for provisional measures for infringement of the patent that covered apparatus for production of milk foam with adjustable temperature.
• Alpina opted-out the patent after the application for interim measures had been submitted. The Vienna LD decided that the opt-out application was ineffective under Rule 5.6 RoP given that an "action" had been commenced before the UPC and an "action" includes proceedings for a preliminary injunction.
• The court also explained that the scope of protection for a EP must be based upon Article 69(1) EPC and its interpretative Protocol, together with Article 24(1)(c) UPCA. Accordingly, the scope of the protection is determined by the content of the claims, the interpretation of which much also be based on the description and drawings.
• CUP&CINO had argued that the product infringed claim 2, but the question of interpretation was raised regarding the length of the pipeline:  claim 2 did not define any mandatory specifications for length. The court decided that the challenged embodiment did not make use of the patent's teaching as the knee connection and coupling part of it, which together had a length of about 10cm, were not a section of the pipeline in accordance with the patent in suit.
• The court rejected the application on the basis that the patent was not infringed. As such, it was not necessary to weigh the parties' interests.

This analysis is based on a machine translation of a decision not available in English.

• This decision concerned an ex parte application for a preliminary injunction issued by myStromer AG against Revolt Zycling AG in respect of alleged infringement of its patent protecting a combination structure of a bicycle frame and motor hub by Revolt's e-bike range "OPIUM".
• Revolt had presented the allegedly infringing e-bikes at a trade fair the day before the application was issued.
• Interestingly, Revolt had filed a protective letter with the court as a defence to the issuance of an ex parte preliminary injunction. However, the Düsseldorf LD granted the ex parte preliminary injunction, finding that the arguments put forward in the protective letter (non-infringement and exhaustion) were not sufficiently substantiated.
• myStromer met the urgency requirement for the grant of the preliminary injunction and the validity of the patent at issues was "secured to the extent required". The court noted that the patent did not have an opposition filed against it and no national revocation actions had been brought. It also noted that Revolt had not been able to present relevant prior art either before the court or in its protective letter.
• The preliminary injunction was granted on an ex parte basis because myStromer had "credibly demonstrated" that any delay would likely cause irreparable harm as per Rule 212.1 RoP. The court also noted that the trade fair was of considerable importance to the industry and that the exhibition of the contested embodiment at the fair could lead to a loss of sales or market share for myStromer that could not be reversed.
• The preliminary injunction covered Germany, the Netherlands, France and/or Italy. myStromer subsequently requested that the order be rectified to include Austria, arguing that the omission of Austria was an “obvious slip” within the meaning of Rule 353 RoP. This request for rectification was denied by an order dated 3 July 2023. According to the judges, an obvious slip required that a “declaration of the judicial intention in the decision or order must deviate from the intention present when the decision was made”.
• The Düsseldorf LD also made a seizure order under Rule 211.1(b) RoP, requiring Revolt to hand over any of the attacked embodiment in its direct or indirect possession or ownership at the trade fair to a bailiff.