UPC CFI, LD The Hague, 18 November 2025: Same Gold Standard test for added matter and novelty.

Patents valid (Article 65 UPCA) but not infringed (Article 25 UPCA).

Claim Interpretation (Article 69 EPC, Interpretation Protocol). 

Feature 1(h): 

No literal infringement: It follows from the strict, literal wording of the claim that the term “non-overlapping” is to be interpreted as not allowing any kind of overlap. This literal interpretation is confirmed when considering the teaching of the patent specifications. 

No infringement by equivalence with regard to the missing ‘non-overlapping’ feature. In view of the legal certainty for third parties, the Court finds it difficult if not impossible to properly construe how much overlap would then still be equivalent. The nucleotide overlap in the defendant’s products has technical function of its own. 

No added matter (Article 138 (1)(c) EPC).The test for added matter is the same gold standard as set out for novelty. In order to assess whether there is added matter, the Court must first ascertain what the skilled person would derive directly and unambiguously using common general knowledge and seen objectively and relative to the date of filing, from the whole of the application as filed, whereby implicitly disclosed subject-matter, i.e. matter that is a clear and unambiguous consequence of what is explicitly mentioned, shall also be considered as part of its content. For feature 1(h), which teaches that the at least two capture probes hybridize to non-overlapping regions of the label probe, no expressis verbis basis can be found in the original application as filed. However, in all figures in which at least two capture probes bind to the label probe, this binding is to non-overlapping regions. 

Inventive step (Article 56 EPC). Prior art teaches away from invention. 
 

IPPT20251118, UPC CFI, LD The Hague, Advanced Cell Diagnostics v Molecular Instruments