UPC CFI LD Munich, 27 August 2024: Preliminary injunction for indirect patent infringement, not for direct infringement

Preliminary injunction for indirect infringement (Article 62 UPCA, R. 211.2 RoP). 

Sufficient degree of certainty for provisional measures regarding indirect infringement, not regarding direct infringement (Article 62(4) UPCA, Rule 211(2) RoP, Article 25 UPCA, Article 26 UPCA)). 

Urgency (Rule 209(2)(b) RoP, Rule 211(3) RoP). As soon as the applicant has all knowledge and documents that reliably enable a promising legal action, he must regularly file the application for interim measures within two months. 

In case of an injunction to prevent indirect infringement it must always be considered whether a relative prohibition or an absolute prohibition should be issued in view of the remaining possibilities for the patent infringer to offer or supply the essential means for other, non-infringing purposes. 

Claim interpretation (Article 69 EPC). The person skilled in the art is a team. The possible applications of claim 1 are many. 

Indirect infringement (article 26 UPCA): it must regularly be assumed that the supplied party will use the means in the manner suggested to it in the supplier's advertising messages, instructions for use and other documents. 

Direct infringement (article 25 UPCA) uncertain with regard to constellation. In certain constellations a direct infringement is unproblematically the case, for example, if a kit for assembly into a complete device is supplied by the customer including assembly instructions and the complete device does not function if it is assembled in a different way. However, due to the large number of different programming options and possibilities for assembling the hardware components, it is not certain with the necessary concreteness that the customer produces a patent-compliant overall device. 

Validity. Burden of proof. 

It is the task of the defendant in the present case to present arguments based on the prior art that make the legal validity of the patent in dispute appear insufficiently secure (Article 54 UPCA). 

Due to the summary nature of the examination of the legal validity in proceedings for the adoption of interim measures, the number of arguments raised against the legal validity must generally be reduced to the best three from the defendant's point of view. The background to this is that while a summary judgement on questions of fact is conceivable, a summary examination of questions of law is not. 

Novelty. Youtube video does not directly and unambiguously disclose all the features of claims 1 and 10 (article 54 EPC). 

Inventive step. Respondent's submission is not suitable to raise significant doubts as to the existence of an inventive step (Article 56 EPC).

IPPT20240827, UPC CFI, LD Munich, Hand Held Products v Scandit