Court of Appeal, February 14, 2025, order on request for provisional measures, UPC_CoA_382/2024

Means-plus-function features must be understood as any feature suitable for carrying out the function (headnote 1, para. 47).

General provisions:

The Court must ascertain what the skilled person would derive directly and unambiguously using their common general knowledge and seen objectively and relative to the date of filing, from the whole of the application as filed, whereby implicitly disclosed subject matter shall also be considered as part of its content (para. 52).

The assessment of added matter cannot be restricted to only those parts of the application as filed which the proprietor indicated as a basis for an amended claim during the examination proceedings at the EPO. A proper understanding of these parts requires an assessment of their content in the context of the disclosure of the application as a whole (para. 53).

It is not required that a claim uses the exact same wording as used in the application as filed, as long as the skilled person would derive the combination of features from the whole application (para. 68).

Provisions on intermediate generalizations on the basis of specific question:

The court did not consider the omission of the the use of an elastomeric or elastic material for sealing the coupling between the sensor and the electronics an intermediate generalization. Several embodiments made use of an elasomeric or elastic material for sealing. However, the Court did not find their features inextricably linked to the use of an elasomeric seal (para. 70 seqq., para. 79). The Court also holds that the application as filed does not provide any particular guidance in terms of specific advantages or disadvantages of the various methods of sealing disclosed, neither in general, nor in relation to specific configurations of the sensor assembly. In particular, there is no described advantage or function of the use of elastomeric or plastic material, other than that it provides sealing. The skilled person understands therefrom that the exact method of sealing does not contribute to, and is thus not relevant for, the technical teaching of the invention as disclosed in the application as filed (para. 75).

A general injunction may be justified even if it is not shown that a patent is infringed by all possible infringing acts. One type of (likely) infringement suffices as a basis for a general preliminary injunction, which includes all possible ways of infringement (headnote 2). In the present case, the claiment had substantiated that one respondent has offered infringing products and placed them on the market within the UPC territory. The imminent threat of importing the infringing product by a further respondent was clear from its position as an importer for the EU territory (para. 142).

A general injunction based on the asserted claim is admissible. The need for a limitation to the specific infringing products cannot be inferred from Art. 62(1) UPCA. The scope of a general injunction always has to be interpreted in the light of the reasoning underlying the order whereby the injunction is issued. Therefore, a general injunction is sufficiently clear, and not too broad (para. 158).

The communication of information pursuant to Art. 67 UPCA may be ordered in the framework of provisional measure proceedings, provided that there is an urgent interest and such measures are proportionate (headnote 3, para. 160).

A general reference to submissions made at first instance is sufficient if and to the extent that the impunged decision does not address them (para. 17).

The respondent’s request for a security for enforcement was rejected as it had not substantiated that serious difficulties would be expected in connection with the recovery of any possible damages from the claimant, which is a US based listed company with several subsidiaries in Europe and undisputed global sales of more than USD 40 billion in 2022 (para. 170).