LD Vienna, 13 September 2023, order on request for preliminary measures, UPC_CFI_182/2023

An application for a provisional measure or an injunction is an “action” pursuant to Rules 5 and 5A of the Rules of Procedure (RoP) of the Unified Patent Court. This follows, in particular, from the wording of Art. 32(1) (c) UPCA, which uses the term “actions for a provisional and protective measure and injunctions”. As a consequence, an application to opt out is ineffective for a patent which has been asserted in an application for a provisional measure or an injunction (Rule 5.6 RoP).

The scope of protection of a European patent is determined in accordance with Art. 69 EPC and the Implementing Regulations and Protocols (Art. 24(1) (c) UPCA). In this course, the description of the patent shall be used to interpret the claim(s) and, in particular, a statement in the description that a certain element (here: “line section”) has a certain physical function (here: “settling zone”) must be considered in the claim interpretation; furthermore, the person skilled in the art will recognize that numeric terms (here: “0.5-2m, preferably 1.5m”) comprise a high degree of unambiguousness and clarity. Notably, the sections referred to in the decision are included in the general part of the description of the patent (summary of the invention).

Upon request, the respondent in proceedings re. provisional measures may be awarded reimbursement of legal costs by the applicant in a final manner, if the applicant cannot validly re-claim reimbursement of such costs should they succeed in the main proceedings.