Article 69

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1. The extent of the protection conferred by a European patent or a European patent application shall be determined by the claims. Nevertheless, the description and drawings shall be used to interpret the claims.

2. For the period up to grant of the European patent, the extent of the protection conferred by the European patent application shall be determined by the claims contained in the application as published. However, the European patent as granted or as amended in opposition, limitation or revocation proceedings shall determine retroactively the protection conferred by the application, in so far as such protection is not thereby extended.

 

Protocol on the Interpretation of Article 69 EPC

 

UPC Case Law:

 

UPC Court of Appeal

 

IPPT20240513, UPC CoA, VusionGroup v Hanshow
Claim features must always be interpreted in the light of the claim as a whole (Article 69 EPC). These features teach the skilled person that the chip and antenna of the radio frequency device should not be placed in the same location in or on the case. 

 

IPPT20240226, UPC CoA, Nanostring v 10x Genomics II

Claim interpretation (article 69 EPC, Interpretation Protocol). The UPC Court of Appeal proceeds from the following principles in accordance with Art. 69 of the Convention on the Grant of European Patents (EPC) and the Protocol on its Interpretation. The patent claim is not only the starting point, but the decisive basis for determining the protective scope of a European patent. The interpretation of a patent claim does not depend solely on the strict, literal meaning of the wording used (see also the German and French language versions of the Protocol on Interpretation: “aus dem genauen Wortlaut der Patentansprüche”, “sens étroit et litéral du texte des revendications”). Rather, the description and the drawings must always be used as explanatory aids for the interpretation of the patent claim and not only to resolve any ambiguities in the patent claim. However, this does not mean that the patent claim merely serves as a guideline and that its subject-matter also extends to what, after examination of the description and drawings, appears to be the subject-matter for which the patent proprietor seeks protection. The patent claim is to be interpreted from the point of view of a person skilled in the art. In applying these principles, the aim is to combine adequate protection for the patent proprietor with sufficient legal certainty for third parties. These principles for the interpretation of a patent claim apply equally to the assessment of the infringement and the validity of a European patent. This follows from the function of the patent claims, which under the European Patent Convention serve to define the scope of protection of the patent under Art. 69 EPC and thus the rights of the patent proprietor in the designated Contracting States under Art. 64 EPC, taking into account the conditions for patentability under Art. 52 to 57 EPC (see EPO EBA, 11 December 1989, G 2/88, OJ 1990, 93 para. 2.5).

 

UPC Court of First Instance

 

IPPT20240704, UPC CFI, CD Paris, DexCom v Abbott 
Claim construction (article 69 EPC): “portion” cannot be construed as meaning “all” measurement data. This corresponds to the usual meaning of a “portion” and is in line with the description of the patent in suit, which distinguishes a portion from all data (Patent at issue, paragraph [0020]: “send a portion or all of the stored data”). 

 

IPPT20240603, UPC CFI, LD Hamburg, Ballinno v UEFA
Local Division not convinced with sufficient certainty that the Defendants infringe the patent in suit (Article 62(4) UPCA, Rule 211(2) RoP; Article 69 EPC). The realization of several features of the patent claim is disputed between the parties (see below under IV. 2.). On summary examination, the Court finds that the attacked embodiment does not make direct or indirect literal use of claim 1 or 8 of the patent in suit (see below under IV. 3.). An infringement by equivalent means has also not been sufficiently demonstrated (see below under IV. 4.). […] it cannot be concluded that it is more likely than not that the attacked embodiment makes literal use of the teaching of patent claim 1 and/or 8, and their dependent claims 3, 7, 10 and 15. The facts of the case do not convince the Court that the attacked embodiment establishes an infringement by equivalent means. The technology used in the “Connected Ball Technology” does not make use of the same technical effect. Neither can a support vector machine nor the functioning of the “Connected Ball Technology” in particular be seen as equivalent to the patented com-parison of sound signals. 

 

IPPT20240521, UPC CFI, LD Munich, Dyson v SharkNinja
Claim interpretation (article 69 EPC). The patent claim is not only the starting point, but the decisive basis for determining the scope of protection of a European patent under Art 69 EPC in conjunction with the Protocol on the Interpretation of Art 69 EPC. The interpretation of a patent claim does not depend solely on its exact wording in the linguistic sense. Rather, the description and the drawings must always be consulted as explanatory aids for the interpretation of the patent claim and not only for the elimination of any ambiguities in the patent claim. However, this does not mean that the patent claim merely serves as a guideline and that its subject matter also extends to that which, after examination of the description and the drawings, appears to be the patent proprietor's request for protection. The patent claim must be interpreted from the perspective of a person skilled in the art. When applying these principles, fair protection for the patent proprietor should be combined with sufficient legal certainty for third parties. These principles for the interpretation of a patent claim apply equally to the assessment of infringement and the legal validity of a European patent (UPC_CoA_335/2023 and CoA 8/2024).

 

IPPT20240430, UPC CFI, LD Düsseldorf, 10x Genomics v Curio Bioscience
Claim interpretation and prosecution history (article 69 EPC). Statements made by the applicant in the granting procedure are not admissible material for interpretation. They are therefore generally not to be taken into account in the context of patent interpretation. 

 

IPPT20240409, UPC CFI, LD Düsseldorf, Ortovox Sportartikel v Mammut Sports
Claim interpretation and prosecution history. Prosecution history is in principle not admissible for claim interpretation. At most it may have indicative significance for how the skilled person understands a feature, if the applicant has commented on the meaning of a feature or term in the curse of the examination procedure (Article 69 EPC). 

 

IPPT20231220, UPC CFI, LD Munich, SES-Imagotag v Hanshow
Claim interpretation - prosecution history (article 69 EPC).The original version of the claims and amendments thereof during the application procedure can be used for claim interpretation. It follows from the spatial delimitation [...] that a component to be assigned to the side of the front surface of the electronic label cannot at the same time be assigned to the side of the rear surface of the housing - and vice versa. 

 

IPPT20231211, UPC CFI, LD Düsseldorf, Ortovox Sportartikel v Mammut Sports
The prosecution history is in principle not to be taken into account when interpreting the patent. Article 24 (1) (c) UPCA in conjunction with Article 69 EPC conclusively determine which documents are to be used in the interpretation of the patent claims determining the scope of protection, namely the patent description and the patent drawings. Mere statements made during the grant procedure do not initially have any significance in limiting the scope of protection. At most, they can have an indicative meaning as to how the person skilled in the art can understand the feature in question (cf. on German law similarly BGH, NJW 1997, 3377, 3380 - Weichvorrichtung II). However, there is no mention of the fact that the simultaneous output of sound signals and voice messages is absolutely necessary for the realisation of the technical teaching of the patent in suit, based on its overall content, in the statement referred to by the defendants before the court in the grant proceedings.

 

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