Article 54

1. An invention shall be considered to be new if it does not form part of the state of the art.

2. The state of the art shall be held to comprise everything made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of the European patent application.

3. Additionally, the content of European patent applications as filed, the dates of filing  of which are prior to the date referred to in paragraph 2 and which were published on or after that date, shall be considered as comprised in the state of the art.

4. Paragraphs 2 and 3 shall not exclude the patentability of any substance or composition, comprised in the state of the art, for use in a method referred to in Article 53(c), provided that its use for any such method is not comprised in the state of the art.

5. Paragraphs 2 and 3 shall also not exclude the patentability of any substance or composition referred to in paragraph 4 for any specific use in a method referred to in Article 53(c), provided that such use is not comprised in the state of the art.

UPC Case Law

Court of Appeal

IPPT20240925, UPC CoA, Mammut v Ortovox
Assessment of novelty within the meaning of Art. 54(1) EPC requires the determination of the entire content of the prior publication. It is relevant whether the subject-matter of the patent-in-suit is directly and unambiguously disclosed in the citation with all its features.

Court of First Instance

IPPT20250131, UPC CFI, LD Mannheim, Rematec v Europe Forestry
Product claim 1 lacks novelty (Article 54 EPC). All the features of device claim 1 are directly and unambiguously known from document D3. 

IPPT20250128, UPC CFI, LD Düsseldorf, Fujifilm v Kodak
Novelty-destroying Implicit disclosure (Article 54(1) EPC). Implicit disclosure means no more than the clear, immediate and unambiguous consequence of what is explicitly mentioned. An alleged prior art disclosure of a feature can be considered "implicit" if it is immediately apparent to the skilled person that nothing other than the alleged implicit feature forms part of the subject-matter disclosed. "Implicit disclosure", however, does not only mean information that the skilled person can unequivocally derive from a cited document in addition to what is explicitly described therein. [...] , “implicit disclosure” means any feature which a person skilled in the art would objectively consider as necessarily implied in the explicit content, e.g. in view of general scientific laws. A feature is also implicitly disclosed if, in carrying out the teaching of a prior-art document, the skilled person would inevitably arrive at a result falling within the terms of a claim. 

IPPT20241113, UPC CFI, LD Paris, HP v Lama
Novelty (article 54 EPC). To form part of the state of the art the invention must be found in its entirety and in a single prior art document with its constituent elements, in the same form, with the same arrangement and the same operation with a view to achieving the same technical result. 

IPPT20241031, UPC CFI, LD Düsseldorf, Valeo Electrification v Magna
On the basis of the understanding of the scope, the validity of the patent in suit is reasonably certain: the validity of the patent in suit is more likely than its invalidity. Decisions of other European Courts or decisions of the EPO concerning the same patent do not bind the Court but may provide helpful indications which the Court may take into account. Not general revocation rates of patents, but only the patent in suit is relevant (see R. 211.2 RoP “patent in question”). To assess novelty the entire content of the prior art document must be determined (Article 54 EPC).

IPPT20241017, UPC CFI, CD Munich, Nanostring v Harvard
Assessment of novelty (Article 54 EPC) requires the determination of the whole content of the prior publication. It is decisive whether the subject-matter of the claim with all its features is directly and unambiguously disclosed in the prior art citation. Applying the above standard to the case at hand, the Central Division comes to the conclusion that the subject matter of claim 1 of the Patent as granted lacks novelty over document D10, Göransson et al. 

IPPT20240830, UPC CFI, LD München, Avago v Tesla
Lack of novelty (Article 54 EPC). The subject-matter of claims 1 and 7 and the auxiliary requests is anticipated by D3 ([…]) to the detriment of novelty. In order to be considered part of the prior art in this sense, an invention must be directly and unambiguously disclosed in a single prior art document. It must be identical in its essential components, in the same form, with the same arrangement and with the same features. The lack of novelty also requires that the subject matter of the invention is directly and unambiguously derived from the prior art. This applies to all claim features. The standard for the disclosure content of a publication is what an average person skilled in the relevant field can and may know and understand. 

IPPT20240827, UPC CFI, LD Munich, Hand Held Products v Scandit

Validity. Burden of proof. It is the task of the defendant in the present case to present arguments based on the prior art that make the legal validity of the patent in dispute appear insufficiently secure (Article 54 UPCA). Due to the summary nature of the examination of the legal validity in proceedings for the adoption of interim measures, the number of arguments raised against the legal validity must generally be reduced to the best three from the defendant's point of view. The background to this is that while a summary judgement on questions of fact is conceivable, a summary examination of questions of law is not. Novelty. Youtube video does not directly and unambiguously disclose all the features of claims 1 and 10 (article 54 EPC). 

IPPT20240731, UPC CFI, LD The Hague, Amycel
Novelty arguments rejected (Article 54 EPC, Article 54 UPCA). Both novelty arguments raised by Defendant are unsubstantiated whereas the burden of presentation and proof for facts concerning the lack of validity of the patent and other circumstances allegedly supporting the Defendant's position lies with the Defendant. 

IPPT20240731, UPC DFI, LD Munich, DexCom v Abbott
Standard for novelty review (Article 54 EPC). In order to be considered part of the state of the art (Art. 54 (1) EPC), an invention must be found clearly integrally, directly and unambiguously in one single piece of prior art and in its existing form, it must be identical in its constitutive elements, in the same form, with the same arrangement and the same features. For lack of novelty to be found, the subject-matter of the invention must be derived directly and unambiguously from the prior art. This applies to all claim features. The standard for the disclosure content of a publication is what can and may be expected from the knowledge and understanding of an average person skilled in the relevant art. 

IPPT20240719, UPC CFI, CD Paris, Meril Italy v Edwards Lifesciences

Novelty (Article 54 EPC). The wording of ‘Levi’'s claims and description does not disclose this feature [1.5]. Additionally, contrary to the claimant's argument, the drawings are not conclusive. Novel in view of ‘Benichou’: claims and description do not disclose a frame made entirely of hexagonal cells, nor do they mention the types of struts which form the cells. […]. Additionally, the figures lack a clear depiction of side struts. Novel in view of ‘Dimatteo’:  person skilled in the art would understand that 'Dimatteo' discloses […] a venous valve rather than a heart valve. Novel in view of ‘Harition’: does not disclose either that the frame comprises hexagonal cells or that it is made up entirely of hexagonal cells.  […] It is clear from this figure [27] that feature (1.5) cannot be derived directly and unambiguously from ‘Hariton’. 

IPPT20240704, UPC CFI, LD Paris, DexCom v Abbott  
Novelty (Article 54 EPC). In order to be considered part of the state of the art, an invention must be found integrally, directly and unambiguously in one single piece of prior art and in its existing form it must be identical with its constitutive elements, in the same form, with the same arrangement and the same features. 

IPPT20240703, UPC CFI, LD Düsseldorf, Kaldewei v Bette
Burden of proof invalidity (article 54 UPCA). The burden of presentation and proof for facts relating to an attack on the novelty and/or inventive step of the patent in dispute lies with the defendant. Novelty: direct and unambiguous disclosure (Article 54 EPC). A technical teaching is new if it deviates from the prior art in at least one of the known features. Only that which is directly apparent to a person skilled in the relevant technical field from publication or prior use is anticipated in the prior art. Findings that a skilled person only obtains on the basis of further considerations or by consulting other publications or uses are not prior art. The mere fact that the skilled person has two options for understanding the information speaks against the existence of a direct and unambiguous disclosure.