Article 69

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

IPPT20241220, UPC CoA, Alexion Pharmaceuticals v Amgen
Claim construction (Article 69 EPC). A linguistic error, a spelling mistake or any other inaccuracy in a patent claim can only be corrected by way of interpretation of the patent claim if the existence of an error and the precise way to correct it are sufficiently certain to the average skilled person on the basis of the patent claim, taking into account the description and the drawings and using common general knowledge. The Court of Appeal can leave open the question of whether the average skilled person, in the context of claim interpretation, can be expected to consult catalogues and databases to check how a perceived error in the claim should be corrected. Even if the average skilled person would do so, it would not be sufficiently certain that the signal peptide consists of 22 amino acids for the following reasons. Alexion’s assertion during the grant proceedings, and in particular the TBA’s endorsement thereof, can be seen as an indication of the view of the person skilled in the art at the filing date. 

IPPT20241203, UPC CoA, SharkNinja v Dyson
Claim construction feature 1.3: “cyclonic separating apparatus” (Article 69 EPC). The patent specification does not define what a cyclonic separating apparatus is. The Court of Appeal, as a first step, agrees with Dyson’s view that cyclonic separating apparatus is a functional claim element as understood by the skilled person at the priority date.

IPPT20241121, UPC CoA, OrthoApnea
Not every new argument constitutes an “amendment of a case” (R. 263 RoP). An amendment of the case in the sense of R. 263 RoP only occurs when the nature and scope of the dispute changes such as through the introduction of a new patent or objection to a new product. A new basis for infringement (such as equivalence) merely concerns the extent of protection conferred under the art. 69 EPC and the corresponding protocol. 

IPPT20240925, UPC CoA, Mammut v Ortovox

Claim construction (article 69 EPC). The claim is not only the starting point but the decisive basis for determining the extent of the protection conferred by the European patent. The interpretation of a claim is not to be based solely on its literal and linguistic meaning, but the description and drawings must always be consulted as aids to interpretation and not only to remedy any lack of clarity in the claim. This does not mean, however, that the claim serves only as a guideline and that its subject-matter extends to what is revealed as the patent proprietor's request for protection after examination of the description and drawings. The patent claim is to be interpreted from the perspective of the person skilled in the art. The local chamber correctly considered a graduate engineer or master's degree in electrical engineering from a university of applied sciences or a university of applied sciences and several years of professional experience in the development and construction of LVS devices to be such a person skilled in the art.

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

IPPT20241211, UPC CFI, LD Paris, DexCom v Abbott
Claim interpretation (Article 69 EPC). The skilled person is a group of persons, comprising persons skilled in the field of (physiological) analyte monitoring systems (such as Continuous Glucose Monitoring (CGM)) and persons skilled in the art of designing portable electronic systems, who are also familiar with the communication and data processing techniques involved in such systems. Strict literal interpretation of claim features relating to “the rules and the setting” in the present case (Article 1, Interpretation Protocol). Deviating from the wording of the claim would in the present case to the detriment of third parties not combine adequate protection for the patent proprietor with sufficient legal certainty for third parties. 

IPPT20241122, UPC CFI, LD Mannheim, Panasonic v Guangdong OPPO
Given the interpretation of the patent claim (Article 69 EPC): The patent is valid, revocation dismissed. No added subject matter (Article 138(1)(c) EPC. Priorities are validly claimed (Article 87 EPC). The invention is sufficiently disclosed (Article 138(1)(b) EPC). The patent involves an inventive step (Article 56 EPC) Attack solely based on incorrect interpretation of the claim. 

IPPT20241122, UPC LD The Hague, Plant-e v Arkyne
Scope of protection (Article  69 EPC and the Protocol) assessed in two steps as seems to be common ground in most contracting member states (including France, Germany, Italy, Belgium, The Netherlands). In a first step, ‘literal’ infringement of the features of (claim 11 of) the patent in view of the claim construction is evaluated. In case claim 11 of the patent is not judged to be literally infringed, equivalence is assessed in a second step. Equivalence (Article 2 Protocol) involves assessing whether, in the perception of the skilled person, the claims, read in the light of the description and drawings, leave room for equivalents, given, on the one hand, equitable protection for the patentee and, on the other hand, a reasonable degree of legal certainty for third parties. A variation is equivalent to an element specified in the claim if the following four questions are answered in the affirmative: [...] 

IPPT20241113, UPC CFI, LD Paris, HP v Lama
Claim construction in language of the patent (Article 69 EPC). Appropriate in French language proceedings to examine all arguments raised in relation to the interpretation of the patent with reference to the patent application as filed in English. No need to apply national law regarding acts of infringement occurring before 1 June 2023 (Article 25 and 26 UPCA). In the territories of the Contracting States that signed the UPCA of 20 June 2013, the acts referred to in Articles 25 and 26 UPCA were already considered to be infringements qualified as acts of infringement by European patent law (Article 69 EPC) or in the national laws of those States that were harmonised by Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights relating to infringements of existing European patents. 

IPPT20241031, UPC CFI, LD Düsseldorf, Sodastream v Aarke
Claim construction (Article 69 EPC). Skilled person will not stop at the literal meaning of a feature but will determine the meaning of the word ”flask“ in the context of the patent claim as a whole. In doing so, the skilled person will turn to the technical function of the flask given by the individual feature and in the context of the other features. The claim must not be limited to the scope of preferred embodiments. The scope of a claim extends to subject-matter that the skilled person understands as the patentee's claim after interpretation using the description and drawings. A claim interpretation which is supported by the description and drawings as a whole is generally not limited by a drawing showing only a specific shape of a component. The Court does not find the fact that the claim is drafted in the so-called two-part form relevant. Apart from the fact that the Court does not rely on the grant procedure as interpretative aid because the procedure is not mentioned in Art. 69 EPC, the Defendant´s argument also fails on the merits. Whether or not the patentee chooses to claim the invention in a two-part form, this does not have any implication for the interpretation of the claim with respect to the scope of protection regarding infringement issues. As the claim must be interpreted as a whole, generally every feature – no matter where in the claim structure it appears – has to be taken into account. No additional room for a  Gillette defence understood in the way the Defendant presented it. Prior art is not mentioned in Article 69(1) EPC. The limitation to the description and the drawings as interpretation material serves the purpose of legal certainty, since the scope of protection can be conclusively determined from the patent itself. If prior art is discussed in the description of the patent in suit, the relevant considerations must be taken into account. If the patent in suit distinguishes itself from the prior art in a particular way, an interpretation that negates that distinction must be avoided. In the case at hand, as it can be seen above, in interpreting the claim, the Court took into account the discussed distinction from the prior art in detail. No publication of decision (Article 80 UPCA). The Claimant´s interests are already satisfied by the effects of the other orders made by this decision on the merits. The right of publication includes a further element of punishment. Publication should therefore only be granted if the protection of the Claimant is not provided effectively and sufficiently ensured by the other measures ordered. This is not the case here. 

IPPT20241031, UPC CFI, LD Düsseldorf, Valeo Electrification v Magna
Literal infringement (Article 69 EPC). It is more likely than not that the patent in suit is infringed by the offer and distribution of the challenged embodiments in the territory of the Contracting Member States Germany and France (R. 211.2 RoP). On summary examination, the challenged embodiments make direct and literal use of the technical teaching of claims 6 (challenged embodiments I and II) and 13 (challenged embodiment II). 

IPPT20240913, UPC CFI, LD Munich, Philips IP v Belkin
Claim interpretation (article 69 EPC). The skilled person reads the claim in a way that makes technical sense and that takes into account the entire disclosure of the patent and with a mind willing to understand the claim in context. The same applies to the description and the drawings, although their purpose must be taken into account, namely to describe or illustrate the basic concept of a claimed invention by means of detailed examples. Protection sought pursuant to the description and the drawings can only be protected when expressed in the claim. If several embodiments are presented in the description as being in accordance with the invention, the terms used in the patent claim are to be understood, in case of doubt, in such a way that all embodiments can be used to fulfil them. 

IPPT20240906, UPC CFI, LD Düsseldorf, Novartis v Celltrion
Claim interpretation is mandatory for the Court but also for the parties, who must submit their views on their proposed interpretation and were right to do so (Article 69 EPC). The skilled person will not stop its interpretation at the philological meaning but will always have in mind the technical function of the feature as such and the features in the context of each other. If a party necessarily considers that a technical argument must be substantiated by a party´s expert opinion, it is for the parties to present the technical argument to the Court in a concentrated and comprehensible form. This is not the case where mere reference is made to a party´s expert report, nor is it the case where a party´s expert report is copied verbatim into the brief. In particular, the technical arguments must be focused and precise for the Court in order to comply with the ambitious time limits set by the law. This applies to the main proceedings and, of course, even more so to PI proceedings..

IPPT20240830, UPC CFI, LD München, Avago v Tesla
Claim interpretation (Article 69 EPC). Interpretation of feature  ‘in at least one of ...’. All of the elements listed in feature 1.1.2 in conjunction with the other features 1.2.2 and 1.3.2 are necessarily and therefore cumulatively claimed. 

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

Claim interpretation (Article 69 EPC). The person skilled in the art is a team. The possible applications of claim 1 are many. Indirect infringement (article 26 UPCA): it must regularly be assumed that the supplied party will use the means in the manner suggested to it in the supplier's advertising messages, instructions for use and other documents. Direct infringement (article 25 UPCA) uncertain with constellation. In certain constellations a direct infringement is unproblematically the case, for example, if a kit for assembly into a complete device is supplied by the customer including assembly instructions and the complete device does not function if it is assembled in a different way. However, due to the large number of different programming options and possibilities for assembling the hardware components, it is not certain with the necessary concreteness that the customer produces a patent-compliant overall device. 

IPPT20240826, UPC CFI, LD Hamburg, Avago v Tesla
Claim interpretation (article 69 EPC). The local division assumes a functional interpretation of the patent in suit. In view of the fact that claim 3 in particular is not limited to semiconductor chips, the person skilled in the art is to be defined as a graduate engineer specialising in electrical engineering with a university degree and several years of experience in the development of power control systems. In the case in dispute, it does not matter under what conditions and to what extent the grant history is relevant for the interpretation of the claim before the UPC. No divergent  interpretation for infringement and validity.

IPPT20240731, UPC CFI, LD The Hague, Amycel
Claim construction (Article 69 EPC). Genetical identity can be assumed to exist also in case the sequencing results show a similarity of 99,88 % or above (with a standard deviation of +/- 0,0235). In fact, in view of the inevitable sequencing errors 100% identity will likely not be found even between identical samples (i.e. samples for the same strain) with the present techniques. 

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

Claim interpretation (Article 69 EPC). Person skilled in the art […] may be identified as a group consisting of a medical device engineer with an interest in prosthetic heart valves and an interventional cardiologist. 

IPPT20240716, UPC CFI, CD Munich, Sanofi-Aventis v Amgen
Claim interpretation of a medical use product claim (Article 69 EPC). The relevant point in time for interpreting a patent claim for the assessment of validity is the filing (or priority) date of the application that led to the patent in suit. Medical use format claims (Article 54(4)(5) EPC) are purpose-limited product claims. The product specified in a medical use claim must be objectively suitable for the claimed use; it must be able to be used for the treatment, prevention or reduction as specified in the claim. In this sense, it must be therapeutically effective. Skilled person is a team set out to solve a problem. The skilled person in this case is a team including someone having a university degree in biological sciences (or biochemistry) and several years of (post-doctorate) experience in the field of antibody technology and a researcher with a number of years post-doctorate research experience who is undertaking preclinical research into the treatment of cardiovascular diseases, and who has an interest in PCSK9 biology with respect to the role and function of PCSK9 in regulating LDL levels. The skilled person who, as rightly pointed out by the Defendant, is not an academic wishing to explore and understand the PCSK9 mechanism, but is a team that is set out to solve a problem, will consider a prior art document in its entirety in light of their common general knowledge and make realistic and practical deductions from a prior art teaching. The skilled person is aiming to solve a problem and in doing so is considering which next step(s), if any, are realistically to be taken. Absent any apparent errors or omissions in a prior art document, a skilled person will not be overly cautious (nor creative) and does not analyse every experiment in a prior art document in isolation with a view to the questions it does not answer but will rather be inclined to accept published (and peer reviewed) research results and reasonable conclusions drawn from those results at face value. Interpretation of the claims (Article 69 EPC). The meaning of the term “catalytic domain” is not explicitly defined in the Patent. The catalytic domain is understood by the skilled person as the region consisting of amino acid residues 123 to 419 of human PCSK9 (SEQ ID NO: 1). Based on wording of the claim and the description. It follows from the above that Figure 26 does not contain the “sole definition” of the catalytic domain. Feature F.3 should not be considered in isolation; its meaning must be determined in light of the claim as a whole and the underlying problem. 

IPPT20240704, UPC CFI, LD 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”). 

PPT20240626, UPC CFI, LD Hamburg, Alexion Pharmaceuticals v Amgen
Application for provisional measures dismissed (R. 211.2 RoP). The court is not at all convinced that the opposition division of the EPO will share the opinion of the court on the question of claim construction and may decide that the patent is invalid (Article 62(4) UPCA, R. 211.2 RoP, Article 69 EPC). 

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.