Application for preliminary measures unfounded: Defendant’s conduct does not already constitute an imminent infringement, i.e. offering of infringing product (Article 62(1) UPCA) (Article 25(a) UPCA).
In order for a patent infringement to be considered imminent, there must be concrete indications in the overall circumstances that an infringement is imminent. It is sufficient for an offer if the act in question actually creates a demand for the product which the offer is likely to satisfy.
Competence of the Local Division Dusseldorf regardless of whether other defendants are located inside or outside the Contracting Member States because one of the Defendants is domiciled in Germany and all the Defendants have a commercial relationship and that the application concerns the same alleged acts of infringement against all Defendants in the present case (Article 33(1)(b) UPCA). The fact of belonging to the same group (legal entities) and having related commercial activities aimed at the same purpose (such as R&D, manufacturing, sale and distribution of the same products) is sufficient to be considered as “a commercial relationship” within the meaning of the Article 33 (1) (b) UPCA.
Jurisdiction – Lis pendens.
Main proceedings and provisional proceedings are not the same cause of action (Article 29 Brussels Ibis).
Stay of provisional measures proceedings because of pending related action is incompatible with their urgent nature (Article 30(1) Brussels Ibis).
No stay of provisional measures proceedings pursuant to Rule 295 RoP. R. 295 RoP refers unambiguously to actions and is therefore not applicable to applications for provisional measures.
Request for security for costs rejected (Article 69(4) UPCA, Rule 158 RoP). No facts indicating an alarming financial situation of the Applicants.
Interim award of legal costs by analogy with R. 211.1 (d) RoP. (Rule 118.5 RoP). Unintended regulatory gap in procedure by which the decision on costs is made (Rule 118.5 RoP) if the application for provisional measures is unsuccessful and the applicant refrains from filing an action on the merits.
Claim interpretation is mandatory for the Court but also for the parties, who must submit their views on their proposed interpretation and were right to do so (Article 69 EPC).
The skilled person will not stop its interpretation at the philological meaning but will always have in mind the technical function of the feature as such and the features in the context of each other.
If a party necessarily considers that a technical argument must be substantiated by a party´s expert opinion, it is for the parties to present the technical argument to the Court in a concentrated and comprehensible form. This is not the case where mere reference is made to a party´s expert report, nor is it the case where a party´s expert report is copied verbatim into the brief. In particular, the technical arguments must be focused and precise for the Court in order to comply with the ambitious time limits set by the law. This applies to the main proceedings and, of course, even more so to PI proceedings.
Cumulative liability defendants because they acted in a close and interdependent commercial relationship based on their structure as a large group of companies (Article 25 UPCA).
Patent infringement of European bundle patents before the UPC is subject to uniform substantive law (article 25 UPCA) and uniform procedural law (article 62(1) UPCA) instead of different national laws.
