Home » UPC decisions » Luxembourg Court of Appeal » CoA Luxembourg, 26 February 2024, order in the proceedings for provisional measures, UPC_CoA_335/2023

CoA Luxembourg, 26 February 2024, order in the proceedings for provisional measures, UPC_CoA_335/2023

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Key takeaways

  1. The patent claim – to be interpreted from the point of view of a person skilled in the art – is not only the starting point, but the decisive basis for determining the
    protective scope of a European patent under Art. 69 EPC in conjunction with the Protocol on the Interpretation of Art. 69 EPC.
  2. The interpretation of a patent claim does not depend solely on the strict, literal meaning of the wording used. Rather, the description and the drawings must always be used as explanatory aids for the interpretation of the patent claim and not only to resolve any ambiguities in the patent claim.
  3. This does not mean that the patent claim merely serves as a guideline but that its subject-matter also extends to what, after examination of the description and drawings, appears to be the subject-matter for which the patent proprietor seeks protection.
  4. In applying these principles, the aim is to combine adequate protection for the patent proprietor with sufficient legal certainty for third parties.
  5. These principles for the interpretation of a patent claim apply equally to the assessment of the infringement and the validity of a European patent.
  1. A sufficient degree of certainty pursuant to R. 211.2 RoP, in conjunction with Art. 62(4) UPCA (see also Art. 9(3) Direcve 2004/48/EC) requires that the court considers it on the balance of probabilies at least more likely than not that the Applicant is entitled to initate proceedings and that the patent is infringed. A sufficient degree of certainty is lacking if the court considers it on the balance of probabilities to be more likely than not that the patent is not valid.
  2. The burden of presentation and proof for facts allegedly establishing the entitlement to initiate proceedings and the infringement or imminent infringement of the patent, as well as for all other circumstances allegedly supporting the Applicant’s request, lies with the Applicant.
  3. Unless the subject-matter of the decision is the ordering of measures without hearing the defendant pursuant to Art. 60(5) in conjunction with Art. 62(5) UPCA, the burden of presentation and proof for facts concerning the lack of validity of the patent and other circumstances allegedly supporting the Defendant’s position lies with the Defendant.

Division

Court of Appeal Luxembourg

UPC number

UPC_CoA_3352023

Type of proceedings

Proceedings for provisional measures

Parties

Applicant: 10x Genomics Inc.; President and Fellows of Harvard College

Defendent: NanoString Technologies Inc.; NanoString Technologies Germany GmbH; NanoString Technologies Netherlands B.V.

Patent(s)

EP 4 108 782

Body of legislation / Rules

Rule 211.2 RoP; Art. 62 UPCA; Art. 60 (5) UPCA


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