UPC CoA, 18 June 2025, Occlutech v Lepu: Provisional measures granted in appeal
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Appeal successful, provisional measures granted (Article 62 UPCA, R. 242 RoP).
Absence of party Lepu from the hearing (R. 116 RoP, R. 240 RoP).
The Court of Appeal […] will treat Lepu as relying only on their written case and will issue the present order on that basis.
New facts and evidence disregarded (Article 73(4) UPCA, R. 222.2 RoP).
Failure to justify that the new submission could not reasonably have been made in the first instance proceedings. The fact that Mr Wang’s thesis concerns a device that, according to Lepu, is a precursor to the Attacked Embodiments and has been developed by a company that Lepu acquired in 2008, underscores that Lepu could and should have submitted the facts and evidence in the first-instance proceedings, and also within the – relatively short – time periods for preparing a defence in provisional measures proceedings. In addition, the new submissions raise questions concerning, inter alia, the accuracy of the translation, the disclosure of a number of the patent claim features and the enablement of the teaching disclosed by Wang. The late submission therefore prejudices Occlutech in its defence against the new argument.
Claim construction (Article 69 EPC).
Claim interpretation not depending solely on the strict, literal meaning of the wording used, but using the description and the drawings as explanatory aids for the interpretation of the patent claim and not only to resolve any ambiguities in the patent claim. The interpretation that claim 1 requires the braiding to consist of multiple wires or threads, i.e. more than one wire or thread follows from i) the wording of the claim, which uses the plural (“wires or threads”) in claim elements 1.1 and 1.2.1, ii) the description, which consistently teaches the use of wires or threads, and iii) the fact that a braiding consisting of a single wire or thread has a number of disadvantages, which both parties accepted as common general knowledge of the person skilled in the art.
Functional claim interpretation of claim elements 1.5.1 and 1.5.2 specifying that the completely closed proximal wall is a “continuous surface” and “forms the proximal end” of the occlusion device. These claim elements must be interpreted in the light of the functions of the proximal wall in the context of the claimed invention. As described above in paragraphs 44 and 45, these functions are: those of supporting endothelialisation and of reducing the risk of embolisation. This means that the person skilled in the art will understand that, for the question of whether claim elements 1.5.1 and 1.5.2. are realised, not any recess or protrusion at the proximal end of the device is relevant, but only a recess or protrusion that has a substantial impact on endothelialisation or embolisation. This interpretation is confirmed by the type of protrusions in prior art devices which the patent description presents as problematic.
Infringement (Article 25 UPCA).
In the Statement of response, Lepu conceded that their assertion in the first instance proceedings that, in the Attacked Embodiments, the wire of which the braiding is made is laid in loops in the hub is incorrect. They acknowledged that the wire from which the braiding of the Attacked Embodiments is made is shortened to achieve the required length. In view thereof, the Court of Appeal understands that it is no longer in dispute that the wire is cut into pieces during the manufacturing process of the device, as Occlutech submits. It follows that the Attacked Embodiments comply with claim element 1.1 (“braiding of thin wires or threads”).
