Key takeaways
Parties select equivalence approach absent CoA case law
When assessing an issue where there is no Court of Appeal case law, such as equivalence, and where both parties have argued based on the same Court of First Instance case law, legal certainty and/or the right of defence guides the local division to adopt a similar approach unless there are reasons that require diverging from it (headnote 1; sec. 172 seq.).
In the present case, the approach established by the local division The Hague (UPC_CFI_239/2023 of Nov 22, 2024) was applied.
Equivalence criteria are cumulative
In order to assess the infringement by equivalence, the criteria set up by the Court of First Instance are cumulative. If any one of the criteria is not met, there is no need to assess the other criteria (headnote 2).
Parties determine subject matter
If a party presents an allegation, the Court will have to respond to this allegation only in so far as the party has presented substantiated arguments (headnote 3).
In the present case, the Court noted that TGI has presented the allegation of added matter in its counterclaim for revocation, using just over one page for the grounds and has not returned to this allegation, either later in its submissions or in the oral hearing. Nevertheless, TGI stated in the oral hearing, in response to the Court’s question, that it is not withdrawing this allegation, and for that reason the Court will have to respond to this allegation as well, but only in so far as TGI has presented substantiated arguments (sec. 63).
Division
Helsinki Local Division
UPC number
UPC_CFI_214/2023, UPC_CFI_403/2025
Type of proceedings
Infringement proceedings including counterclaim for revocation
Parties
AIM Sport Development AG (Claimant);
TGI Sport Suomi Oy, TGI Sport Virtual Limited, TGI Sport France Sasu, TGI Sport Italia S.r.l., TGI Sport Marketing Espana S.L., TGI Sport Virtual UK Limited (all Defendants)
Patent(s)
EP 3 295 663
Body of legislation / Rules
Rule 25 RoP, Art. 54, Art 56, Art. 69, Art. 123(2) EPC
