Key takeaways
Patentees must draft precise numerical ranges in composition claims; unclear bases risk added matter (Art. 65(1),(2) UPCA; Art. 138(1)(c) EPC).
The Court construed the coposition as claimed in claim 1 of the Patent as comprising a range of marker molecule calculated in respect of the total sugar composition, while the application disclosed that the amounts of the components a, b and c must be calculated by weight relative to the total sugar concentration in the sugar composition. The Court considered this amendment to add technically relevant information, which was not derivable from the application as filed, resulting in revocation. According to the Court, the patentee is responsible for drafting claims that adequately define the subject matter for which protection is sought. This is particularly the case for composition claims containing numerical ranges of ingredients. For such claims, the skilled person may reasonably expect that the patentee is precise and diligent in specifying the components of a claimed composition
Intermediate-product patentability requires an inextricable link to an inventive process; absent the link, obviousness applies (Art. 56 EPC; Art. 65(1),(2) UPCA).
The specification did not enable or evidence how the claimed “intermediate” arises in, or contributes to, an inventive route; known xylose-rich compositions rendered the claim obvious. The Court found that absent an inextricable link between a claimed composition and an inventive process for the production of a known end-product, no inventive step can be acknowledged for an otherwise non-inventive composition relied upon as an intermediate product.
Division
Central Division (Section Munich)
UPC number
UPC_CFI_829/2024
Type of proceedings
Revocation action
Parties
Claimant: UPM-Kymmene Oyj
Defendant: International N&H Denmark ApS (substituted for Virdia Inc.)
Patent(s)
EP 2 611 800
Jurisdictions
UPC (revocation effect for AT, FI, FR, DE, NL, SE)
Body of legislation / Rules
R. 30.2 RoP
R. 49.2 RoP
R. 50.2 RoP
R. 118.5 RoP
Art. 32(1)(d) UPCA
Art. 65(1)–(3) UPCA
Art. 69(1) UPCA
Art. 73(1) UPCA
Art. 76(1) UPCA
Art. 82 UPCA
Art. 56 EPC
Art. 123(2) EPC
Art. 138(1)(a), (c) EPC
