UPC CFI , LD The Hamburg, 5 November 2025 : Counterclaim for revocation unsuccessful, inclusion of late filed prior art documents constitutes an amendment under Rule 263 RoP.
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Counterclaim for revocation unsuccessful, patent valid and infringed (Article 25 UPCA, Rule 25 RoP).
No invalid claim of priority of the first application. (Article 87 EPC) .
The term “the same invention” is to be interpreted as meaning that a claimed invention is to be regarded as the same invention as the invention in an earlier application if the person skilled in the art can derive the subject matter of the claim directly and unambiguously from the earlier application as a whole, using general technical knowledge. (UPC_CoA_382/2024).
The person skilled in the art can directly and unambiguously derive features 1.6 and 1.7 from the priority document, even if the features are not explicitly set forth in the priority document.
The patent is novel over late filed prior art documents (Annexes NK 22 and 23) (Article 54 EPC) ,which were submitted after the expiration of the deadline.
The expansion of the revocation claim to include late filed prior art documents constitutes an amendment under Rule 263 RoP.
The burden of proof that neither the requirements of Rule 263(1) RoP nor the grounds for exclusion under Rule 263(2) RoP are met lies with the applicant.
Based on this, there are doubts as to whether the defendants’ submissions justify the admission of this extension of the counterclaim despite the delay.
Patent Infringed (Article 25 UPCA).
The contested embodiments implement all the features of claim 1 without difficulty.
