UPC CoA, 27 March 2026: Admissibility of auxiliary requests in provisional measures proceedings

Appeal dismissed of rejection of provisional measures (Article 62 UPCA, R. 206 RoP, R. 211 RoP). 

Admissibility of auxiliary requests in provisional measures proceedings (R. 30 RoP, R. 222 RoP). Asserting a patent in an amended (non-granted) form is not automatically inadmissible and depends on the circumstances of the case. Whether such amended claims are suitable is assessed in light of the expedited and limited nature of preliminary injunction proceedings. Parties may file auxiliary requests, but their admissibility depends on procedural rules and timing. The admission of new (auxiliary) requests in appeal proceedings is subject to the court’s discretion under R. 222 RoP. 

Claim interpretation (Article 69 UPCA). Even though not linked by the word ‘and’ the pattern as claimed requires both (at least one) spatial component and (at least one) temporal component to be present.  However, the mention of both components, the use of the word ‘comprise’ and the clause in feature 6.2 relating to the temporal component, which refers to the previously described (at least one) spatial component, make it clear that both components are essential for characterising a design.” 

Direct Infringement (Article 25 UPCA) requires that all claim features are present when the product is offered or marketed. The accused device was only programmed later by medical professionals, so the required features were not present at the relevant time. Uncertain that users will configure the system in an infringing way. 

Indirect infringement (Article 26 UPCA). Intended use: The intended use pursuant may be determined and presumed on the basis of objective circumstances if such circumstances exist that allow for the sufficiently certain conclusion that the product offered or delivered is intended to be used by the recipient of the offer or the recipient of the delivery for the purpose of utilizing the invention. Insufficient evidence that users intended or were instructed to use the product in an infringing way. Intended use can be inferred from objective circumstances such as instructions, product design, or actual use. The manuals did not clearly teach or recommend an infringing configuration. The device could be used in non-infringing ways, weakening any inference of intent.

IPPT20260327, UPC CoA, Onward v Niche