CoA Luxembourg, 26 February 2024., Order In The Proceedings For Provisional Measures, UPC_CoA_335/2023

• Published date: 02 April 2024
• Subject Matter: Intellectual Property, Patent
• Law Firm: Bardehle Pagenberg
• Author: Antje Weise and Stefan Lieck

1. Key takeaways

Claim Construction

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.

Likelihood of Infringement and Validity and Burden of Proof

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...