UPC CFI LD Düsseldorf, 9 April 2024: Claim interpretation and prosecution history

Ex parte order of 11 December 2023 upheld, including the obligation to provide security in the amount of EUR 500,000.00. 

Claim interpretation and prosecution history. Prosecution history is in principle not admissible for claim interpretation. At most it may have indicative significance for how the skilled person understands a feature, if the applicant has commented on the meaning of a feature or term in the curse of the examination procedure (Article 69 EPC). 

Provisional measures do not require risk taking by applicant but reliable knowledge of relevant facts (Article 47 UPCA, Article 62 UPCA, Rule 213 RoP). The applicant only needs to call upon the court if he has reliable knowledge of all the facts that make legal action in the proceedings for an order for provisional measures promising and if he can make these facts credible: that the applicant is entitled to initiate the proceedings, that the patent in question is valid and that its right is infringed or threatened to be infringed. 

Front loaded UPC proceedings – late-filed submissions. The parties must co-operate with the court and present their arguments as early as possible (point 7, Preamble RoP). Submissions after the conclusion of the oral proceedings do not fulfil these requirements and must therefore generally be rejected as late. This applies in any case if the party concerned was not exceptionally granted the right to make additional submissions within a time limit set by the court during the oral hearing in response to a reasoned request. 

No interim award of costs (Article 69 UPCA, Rule 211(1)(d) RoP). There is no reason for a decision on costs in proceedings for interim measures if the summary proceedings are followed by proceedings on the merits. 

As a rule the applicant is to provide adequate security for appropriate compensation for any injury if the order for provisional measures is revoked, unless the specific case exceptionally requires otherwise (Rule 211(5) RoP).

IPPT20240409, UPC CFI, LD Düsseldorf, Ortovox Sportartikel v Mammut Sports