UPC CFI, LD Vienna, 19 February 2026 : A commercial brochure is a stand-alone piece of prior art distinct from a physical product.
11-06-2026 Print this page
Patent valid and not infringed. (Article 65 UPCA, Article 25 UPCA)
Claim interpretation on the basis of the language of the patent (German) (Article 69 EPC, Article 70 (1) EPC).
Although the language of the proceedings is English, interpretation and considerations are based on the German text of the patent and the English translations of the claims are read similarly.
The German term “Knick” as used in the German language version of claim 1 is understood by the person skilled in the art as a portion of the claimed packaging that is created by folding of card- or paperboard along a predefined folding line, causing in the folded state a visible sharp crease at the interface of two walls or wall-shaped portions of the packaging.
Claimant’s argument that a bending radius cannot be used as clear distinction between the English terms “bend” and “fold” […] does not lead to a different result.
New pieces of prior art (enclosures J, M, N, O, P) introduced by the defendant disregarded as late filed (Rule 9 RoP, Rule 25 RoP).
Rule 25.1 requires the counterclaim for revocation to contain an indication of the facts relied on, and the evidence relied on, where available and an indication of any further evidence which will be offered in support.
Submitting evidence for prior state of the art or for prior use at a later time requires a reasonable justification regarding to the timeliness.
A commercial brochure (Exhibit D4) as such, is a stand-alone piece of prior art distinct from a physical product. (Rule 263 RoP)
The physical product filed as Exhibit J may not be used to establish the disclosure of the brochure D4; it must also be avoided to establish the disclosure of D4 in “hindsight” with the knowledge of the physical product filed as Exhibit J.
Already from the outset, obtaining the physical product that is being advertised in a commercial brochure is not a valid approach to establishing the disclosure of the stand-alone publication.
Obtaining and filing the Enclosures J, M, N, O, P hence cannot be seen as a reaction to Claimant’s arguments and an attempt to counter Claimant’s arguments in the reply to the counterclaim.
