UPC CFI LD Munich, 21 May 2024: Preliminary injunction for Germany and France
06-06-2024 Print this page
Preliminary injunction for Germany and France (Rule 211 RoP).
Urgency (Rule 209(2) RoP): Two months is normally not an unreasonably long wait for filing an application for provisional measures in the case of a suspected infringement in two or more countries, in view of the necessary prior examination as to whether the embodiments of the defendants actually make use of the teaching of the patent in suit and whether legal action will also be possible with a prospect of success, and in view of the corresponding serious preparation of the proceedings.
Claim interpretation (article 69 EPC). The patent claim is not only the starting point, but the decisive basis for determining the scope of protection of a European patent 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 its exact wording in the linguistic sense. Rather, the description and the drawings must always be consulted as explanatory aids for the interpretation of the patent claim and not only for the elimination of any ambiguities in the patent claim. However, this does not mean that the patent claim merely serves as a guideline and that its subject matter also extends to that which, after examination of the description and the drawings, appears to be the patent proprietor's request for protection. The patent claim must be interpreted from the perspective of a person skilled in the art. When applying these principles, fair protection for the patent proprietor should be combined with sufficient legal certainty for third parties. These principles for the interpretation of a patent claim apply equally to the assessment of infringement and the legal validity of a European patent (UPC_CoA_335/2023 and CoA 8/2024).
Nullity arguments in proceedings for provisional measures (Article 62 UPCA, Rule 211(2) RoP). Due to the summary nature of the examination of the legal validity in proceedings for the adoption of provisional measures, it is not possible to consider a full examination of all challenges to the legal validity as in nullity proceedings. Rather, the number of arguments raised against the legal validity in the present case must be reduced to the three best arguments from the point of view of the defendants.
No interim award of costs (Rule 211(1)(d) RoP). There is no reason for a provisional decision on costs in proceedings to order interim measures if the summary proceedings - as here - must be followed by proceedings on the merits and no special reasons, e.g. an insolvency risk, have been put forward that would require such an order.
