UPC CFI, LD The Hague, 10 October 2025: Direct and indirect infringement of shelf divider patent

(in)direct patent infringement (Article 25 UPCA); Revocation dismissed (Article 65 UPCA). 

Counterclaim for declaration of non-infringement inadmissible in the absence of a prior assertion of infringement with respect to Product 2. Such assertion may not be deduced from the mere fact that the patent was invoked with respect to a different product (R. 61.1 RoP). The relevant date here when all requirements of R.61.1 (a) and (b) should be fulfilled, is the launch of the counterclaim. 

Claim construction (Article 69 EPC). Claim not limited to one specific embodiment, in the absence of clear indications to the contrary. For example, under the section ‘detailed description of embodiments’ (plural) in the patent, par. [0047], clearly describes several embodiments. 

No added matter (Article 138(1)(c) EPC). Omission of the feature of a friction member, which has no inextricable link with the rest of the features of claim 1, does not add matter. 

Inventive step (Article 56 EPC). BSRP has not showed any hint in the prior art given to the skilled person towards the claimed solution and is not able to explain why the skilled person would make such modification. 

Infringement by equivalence as the protrusion is technically equivalent (Article 2, Interpretation Protocol). Also in case BSRP were followed and one would draw the borderline between the first and second arm differently so that the protrusion/rail that contains a stop surface in the BSRP Product is considered to be located on the second arm (see the Court’s drawings in 11.4.3), as BSRP maintains, this would amount to infringement by equivalence as the protrusion is technically equivalent. 

(In)direct infringement (Article 25 UPCA, Article 26 UPCA). 

When the shelf accessory and rear device are sold together this constitutes direct infringement. The fact that they are not sold in an assembled state, does not alter this view as they are nonetheless sold together as the system of claim 1. 

As to the shelf accessory or rear securing device sold separately, the Court opines that HL Display has sufficiently substantiated that both the shelf accessory and the rear securing device of the BSRP Product are means relating to essential elements of the invention. BSRP also does not deny that it knew or should have known that those means are suitable and intended for putting the invention of EP 351 into effect.  
 

IPPT20251010, UPC CFI, LD The Hague, HL Display v Black Sheep Retail