Key takeaways
Asserting a patent in a non-registered claim version is not categorically excluded in provisional measures proceedings; admissibility depends on the circumstances of each case (R. 211.2 RoP).
There is no automatic additional burden on the Appellee from assertion of a non-registered version. Whether the specific version is suitable for provisional measures is a case-by-case determination. If defence rights are unduly curtailed, this can be addressed through R. 211.3 RoP
Admissibility of new auxiliary requests on appeal is governed by R. 222 RoP.
New requests on appeal are subject to the Court’s discretion under R. 222.2 RoP. The summary nature of the proceedings and the potential loss of one instance for the Appellee counsel may demand some restraint, but admission is possible where the Appellee is not materially prejudiced.
Intended use under Art. 26 UPCA can be established through objective circumstances permitting the sufficiently certain conclusion that the means will be used for the invention.
Objective circumstances capable of establishing intended use include actual subsequent patent-implementing use, user manuals describing or recommending such use, or the product being tailored to or only economically usable in a patent-implementing manner. The subjective will of the offerees or recipients is determinative.
Division
Court of Appeal
UPC number
UPC_CoA_898/2025
Type of proceedings
Appeal RoP220.1
Parties
ONWARD Medical N.V.
vs.
Niche Biomedical, Inc.
Patent(s)
EP 3 421 081
Body of legislation / Rules
R. 211, 222, 263, 150, 30 RoP
