1. Key takeaways
The patent claim is not only the starting point, but the decisive basis for determining the scope of protection of an EP under Art. 69 EPC in conjunction with the Protocol on the Interpretation of Art. 69 EPC
The interpretation of a patent claim does not depend solely on the strict, literal meaning of the wording used. Rather, the description and the drawings must always be used as explanatory aids for the interpretation of the patent claim and not only to resolve any ambiguities in the patent claim.
This does not mean that the patent claim merely serves as a guideline but that its subject-matter also extends to what, after examination of the description and drawings, appears to be the subject-matter for which the patent proprietor seeks protection.
The patent claim is to be interpreted from the point of view of a person skilled in the art.
Since provisional measures are ordered in summary proceedings it must be more likely than not that the applicant is authorised to initiate proceedings according to Art. 47 UPCA, that the patent is valid and that it is infringed
The burden of presentation and proof lies with the applicant.
The person shown in the Register for unitary patent protection as the proprietor shall be treated as such and is entitled to apply for an order on provisional measures, Rule 8.4 RoP, Art. 47(1) UPCA
The licence holder is also entitled to submit an application, Art. 47(3) UPCA.
An alleged violation of Rule 206.2(b)-(e) RoP does not render an application inadmissible
In Rule 206.2 RoP, a distinction must be made between the provision in letter (a) and the provisions in letters (b)-(e).
The requirements in letter (a) are of a formal nature and can be corrected after objection by the registry; otherwise a decision by default according to Rules 16.5, 355.1(a) RoP may be issued.
The requirements in letters (b)-(e) concern the merits of an application. They are subject to judicial review and are taken into account in orders according to Rules 209, 211 and 212 RoP.
The fact that arguments on validity of an auxiliary request are presented at the oral hearing of the appeal proceedings for the first time does not necessarily violate Rule 222.1 RoP
In the statement of grounds of appeal, the defendant had asked for a court indication if, in addition to statements on admissibility, submissions on the merits were also required. This advice was given at the hearing, whereby the applicant was not unfairly disadvantaged.
The cost decision has no directly enforceable content and direct enforceability can therefore not be ordered upon application
2. Division
Court of Appeal, Luxembourg
3. UPC number
UPC_CoA_335/2023
4. Type of proceedings
Appeal proceedings
5. Parties
Defendants and appelants: 1. NanoString Technologies Inc. 2. NanoString Technologies Germany GmbH 3. NanoString Technologies Netherlands B.V.
Applicants and respondents: 1. 10x Genomics, Inc. 2. President and Fellows of Harvard College
6. Patent(s)
EP 4 108 782
7. Body of legislation / Rules
Rule 8.4 RoP, Rule 206.2 RoP, Rule 222.1 RoP, Art. 47 UPCA, Art. 69 EPC
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