UPC CFI LD Vienna, 13 September 2023: ineffective withdrawal of opt-out after commencement of proceedings

22-02-2024 Print this page
UPC CFI, LD Vienna, 13 September 2023, CUP&CINO v Alpina Coffee

Preliminary injunction and provisional measures denied: no infringement. 


Application to opt-out (6 July 2023) is ineffective after commencement of the action before the Court (27 June 2023) (Rule 5(6) RoP). 


The blocking mechanism means that the jurisdiction of the UPC can no longer be withdrawn. Request for interim measures is an “action” within the meaning of Rule 5 and 5A RoP and Article 83(3) UPCA


The scope of protection of a European patent is to be interpreted on the basis of Article 69 (1) EPC including its interpretative protocol in conjunction with Article  24(1)(c) UPCA

Accordingly, the scope of protection of the patent is determined by the content of the patent claims, for the interpretation of which the description and the drawings must also be taken into account. In this respect, the interpretation of the patent claims serves not only to eliminate any ambiguities, but also to explain the technical terms used therein and to clarify the meaning and scope of the invention described therein. The patent description is the source material for determining the technical teaching that is protected by the patent claim. 

This form of interpretation combines adequate protection for the patent proprietor with sufficient legal certainty for third parties. The aspect of legal certainty requires that interested third parties are able to recognise whether a contemplated, planned or already realised specific embodiment falls within the scope of protection of the patent claim. 


In proceedings for interim measures, the successful defendant can be finally awarded procedural costs upon application (Article 69 UPCA, Rule 150 RoP). The applicant cannot successfully claim the costs of these proceedings as the unsuccessful party, even if the proceedings on the merits are successful. 


IPPT20230913, UPC CFI, LD Vienna, CUP&CINO v Alpina Coffee