UPC CFI, LD Brussels, 17 January 2025: In the absence of technically functional equivalence there can be no infringement by equivalence
20-02-2025 Print this page
No patent infringement: neither literal nor by equivalence (Article 25 UPCA).
The assessment of the scope of protection of a patent is in two stages (Article 69 EPC, Interpretation Protocol). In the first stage, the literal infringement must be assessed on the basis of the characteristics of the patent in the light of the interpretation of the claims. In a second stage, if it is judged that no literal infringement can be assumed and provided that this is invoked, the infringement will be assessed by equivalence.
No literal infringement (Article 69 EPC). In the NOA the closing of the mouth is not further prevented (or limited) by a ‘stop’ and ‘contact surface’ in the sense of claim 1.
No infringement by equivalence (Article 2, Interpretation Protocol). In the absence of technically functional equivalence, irrespective of the test used (the ‘function-way-result’ test or the ‘insubstantial differences’ test), there can be no infringement because of equivalence. In NOA, the connecting elements (and the corresponding parts of the elements) do not have this function, which is to prevent the mouth from closing any further. In NOA, the complete closure of the mouth is prevented by the upper and lower parts of the device coming together. In this case, it is not the coupling elements that have the function of preventing further closing of the mouth, but the upper and lower parts in the occlusal plane. S
tart of proceedings on the merits is the date of uploading the (Dutch-language) Statement of Claim in the CMS (R. 198.1 RoP)
