Scope of appeal and proceedings (Article 73(4) UPCA, R. 222.1 RoP).
The Court of Appeal decides at its discretion, taking into account all the circumstances, whether a submission that was rightly not admitted by the Court of First Instance is to be considered in the appeal proceedings. The subject matter of the appeal proceedings in proceedings for the review of interim measures is in principle limited to the submissions made in the proceedings for the grant of interim measures. In order to ensure legal certainty and the proper administration of justice, the statement of grounds of appeal must be sufficiently clear and specific to enable the respondent to prepare a defence of the judgment at first instance and to enable the court hearing the appeal to decide the appeal. The court may not take into account in its decision written submissions that are submitted only after the conclusion of the oral proceedings on which the decision is based. (R. 195 RoP).
Claim construction (article 69 EPC).
The claim is not only the starting point but the decisive basis for determining the extent of the protection conferred by the European patent. The interpretation of a claim is not to be based solely on its literal and linguistic meaning, but the description and drawings must always be consulted as aids to interpretation and not only to remedy any lack of clarity in the claim. This does not mean, however, that the claim serves only as a guideline and that its subject-matter extends to what is revealed as the patent proprietor's request for protection after examination of the description and drawings.
The patent claim is to be interpreted from the perspective of the person skilled in the art. The local chamber correctly considered a graduate engineer or master's degree in electrical engineering from a university of applied sciences or a university of applied sciences and several years of professional experience in the development and construction of LVS devices to be such a person skilled in the art.
IPPT20240925, UPC CoA, Mammut v Ortovox
Assessment of novelty within the meaning of Art. 54(1) EPC requires the determination of the entire content of the prior publication. It is relevant whether the subject-matter of the patent-in-suit is directly and unambiguously disclosed in the citation with all its features.
Unreasonable delay in seeking provisional measures (R. 211.4 RoP).
The decisive point in time is when the applicant has the necessary facts and evidence within the meaning of R.206.2d RoP or, having exercised due care, should have had them. Whether a delay is unreasonably long within the meaning of R.211.4 Rules of Procedure depends on the circumstances of the individual case. Since Ortovox first became aware of an impending patent infringement on 28 November 2023, Ortovox did not wait an unreasonably long time to file the application on 1 December 2023; on the contrary, Ortovox filed it promptly. The fact that the orders were not served until 21 or 22 December 2023, and thus the pre-Christmas business could not be prevented, as intended by Ortovox, is not a circumstance related to the period claimed until the application was filed. Irrespective of this, even if all the circumstances were taken into account, this period would not be unreasonably long.
Irreparable harm is not a necessary condition for ordering provisional measures (Article 62(2) UPCA, R. 211 RoP, Article 9 Enforcement Directive) (see CJEU, judgment of 28 April 2022, C-44/21, Phoenix/Harting ECLI:EU:C:2022:309, para. 32).
Art. 62(2) UPCA and R.211.3 RoP only refer to the possibility of damage, which is to be taken into account when weighing up the interests. Even R.212.1 RP, which allows an ex parte order, does not necessarily require irreparable damage.
Leave to change claims or to amend case (R. 263 RoP) also applies to requests for interim measures
