UPC CoA, 3 March 2025, Provisional injunction necessary because permanent price erosion can be expected
06-04-2025 Print this page
Provisional injunction confirmed.
Person skilled in the art (Article 56 EPC). Common general knowledge is knowledge that an experienced person in the field in question is expected to have, or at least to be aware of, to the extent that he knows he could look it up in a book if he needed it.
Claim construction – core of the invention (Article 69 EPC). Claim construction relating to feature c is derived from an understanding of the core of the invention, and from a close reading of paras 28 through 31 of the patent specification, together with examples 1 and 2. Claim features must be interpreted in light of the claim as a whole and the claim must be interpreted in light of the specification as a whole. Product claims confer protection to all processes for making that product. The skilled person will look at the teaching of the specification as a whole when reading the claim, rather than singling out a specific composition and draw conclusions based on separate aspects of the invention as described in the patent specification. In particular examples cannot generally be understood as limiting the scope of the claim. The core of the invention is that fatty acids can significantly chemically stabilise HPPD-inhibiting herbicides in herbicidal compositions (see above). Feature c covers a plurality of FFAs. This stems from the wording “at least one…” and finds support in para 26 of the patent specification. The 1 % to 95 % by weight can consequently include the combination of several different FFAs.
Infringement more likely than not (Article 25 UPCA, Article 62 UPCA). Syngenta has […] fulfilled its burden – in other words, satisfied the Court that it is more likely than not – that the Kagura 2024 product contains FFA that fall within the range (1 % to 95 % by weight) protected by claim 1 of the patent.
More likely than not that the patent is valid. Sumi Agro’s novelty attack fails because it relies on the presence of common general knowledge with the person skilled in the art that rapeseed oil may include a small amount (up to 2 %) of FFA, which has not been demonstrated, (Article 54 EPC).
The mere chance that the skilled person could choose such an ingredient is insufficient for a finding of lack of inventive step. (Article 56 EPC).
Necessity provisional injunction because price pressure and permanent price erosion can be expected (Article 62 UPCA, R. 206.2 RoP). Syngenta not required to demonstrate and quantify how sales have been affected during the time when both products (Elumis and Kagura) were on the market.
Territorial scope – accession of Romania (Article 34 UPCA, R. 222 RoP). When a UPC Signatory State ratifies and accedes, the application of Art. 34 UPCA should be automatic and not subject to limitations, from the day of accession. In view of the general rule in Article 34 of the UPCA, the Court exercises its discretion to allow the application with regard to Romania in the appeal proceeding.
Cost decision in inter partes proceedings for provisional measures (Article 69 UPCA) It concludes the action.
