Key takeaways
Reasonable number of auxiliary requests
To ascertain what constitutes a reasonable number of auxiliary requests, several factors are to be considered: the complexity of the technology involved, the number of prior art documents, the individual validity attacks and the presentation and structure of the auxiliary requests.
It is not relevant whether there are multiple proceedings in relation to the patent in suit or proceedings in other patents of the same family, whether different bodies are making decisions or whether the claims encompass a large number of features.
While the RoP do not provide a sanction in case of an unreasonable number of auxiliary requests, the court intends to deal with the auxiliary requests in order up to a reasonable number.
The court will likely consider up to 10 auxiliary requests as a reasonable number.
New attack in Reply
When an additional attack is included after the Statement of revocation, it is necessary to explain why the additional attack could not have reasonably be included initially. A brief and generic explanation of the attack´s relevance is not such an explanation. If no reasons are presented or are apparent as to why the new arguments were not and could not reasonably have been introduced earlier, the additional attack will be disregarded.
Division
CD Munich
UPC number
UPC_CFI_526/2024
Type of proceedings
Revocation action
Parties
Claimant: Kunststoff KG Nehl & Co.
Defendant: Häfele SE & Co. KG
Patent(s)
European patent EP 3 767 151
Body of legislation / Rules
Rule 50.2 RoP in connection with 30.1 and 30.2 RoP, Article 65(3) UPCA, Rule 9.2 RoP, point 7 Preamble RoP
