UPC CFI LD Hamburg, 3 June 2024: PI denied because of unreaonable delay and insufficient certainty of infringement

Application for provisional measures dismissed because of a lack of urgency from a temporal perspective; unreasonable delay in seeking provisional measures (Article 62 UPCA, Rule 209(2)(b) RoP, Rule 211 RoP). 

No necessary measures to clarify the alleged infringement and obtain the documents required to support its claims were taken between mid-November 2023 (when it became clear that a settlement was not within reach) and mid-February 2024. 

Local Division not convinced with sufficient certainty that the Defendants infringe the patent in suit (Article 62(4) UPCA, Rule 211(2) RoP; Article 69 EPC). 

The realization of several features of the patent claim is disputed between the parties (see below under IV. 2.). On summary examination, the Court finds that the attacked embodiment does not make direct or indirect literal use of claim 1 or 8 of the patent in suit (see below under IV. 3.). An infringement by equivalent means has also not been sufficiently demonstrated (see below under IV. 4.). […] 

it cannot be concluded that it is more likely than not that the attacked embodiment makes literal use of the teaching of patent claim 1 and/or 8, and their dependent claims 3, 7, 10 and 15. 

The facts of the case do not convince the Court that the attacked embodiment establishes an infringement by equivalent means. The technology used in the “Connected Ball Technology” does not make use of the same technical effect. Neither can a support vector machine nor the functioning of the “Connected Ball Technology” in particular be seen as equivalent to the patented com-parison of sound signals. 

IPPT20240603, UPC CFI, LD Hamburg, Ballinno v UEFA