UPC CoA, 26 February 2024, PI revoked - more likely than not that there is no inventive step

Preliminary injunction revoked. 

It is, on the balance of probability, more likely than not that the subject-matter of claim 1 in the version of the main request will prove to be obvious (article 56 EPC) 

Likely that for a person skilled in the art at the priority date of the patent at issue, after successful application of an in vitro multiplex method for the detection of ASMs, the next step was to consider transferring the method to an in situ environment. 

Reasonable expectation of success from a technical point of view. 

Arguments regarding lack of inventive step auxiliary request, although only presented at oral hearing, are in the present case part of the subject-matter of the proceedings before the Court of Appeal (Rule 222 RoP). Applicants defence not unduly disadvantaged. 

Standard of proof regarding order for provisional measures. Burden of proof. Facts giving rise to the entitlement to initiate proceedings and the infringement or imminent infringement of the patent, as well as other circumstances favourable to the infringement action, are to be presented and proven by the rightholder, whereas the burden of presentation and proof with regard to the facts from which the lack of validity of the patent is derived and other circumstances favourable to the invalidity or revocation lies with the opponent. 

Claim interpretation principles in accordance with article 69 EPC and the Protocol on its Interpretation. These principles for the interpretation of a patent claim apply equally to the assessment of the infringement and the validity of a European patent. 

Munich Local Division had jurisdiction for provisional measures because attacked embodiments had been offered in Germany (Article 33(1)(a) UPCA). 

A distinction must be made between the formal requirements of Rule 206(2)(a) RoP (checked by the Registry) and the substantive requirements of Rule 206(2)(b) to (e) RoP (checked by the court). 

IPPT20240226, UPC CoA, Nanostring v 10x Genomics II