Article 2

For the purpose of determining the extent of protection conferred by a European patent, due account shall be taken of any element which is equivalent to an element specified in the claims. 

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German language version:

Bei der Bestimmung des Schutzbereichs des europäischen Patents ist solchen Elementen gebührend Rechnung zu tragen, die Äquivalente der in den Patentansprüchen genannten Elemente sind.

French language version:

Pour la détermination de l'étendue de la protection conférée par le brevet européen, il est dûment tenu compte de tout élément équivalent à un élément indiqué dans les revendications.

Case Law UPC

Court of First Instance

IPPT20250117, UPC CFI, LD Brussels, OrthoApnea
No infringement by equivalence (Article 2, Interpretation Protocol). In the absence of technically functional equivalence, irrespective of the test used (the ‘function-way-result’ test or the ‘insubstantial differences’ test), there can be no infringement because of equivalence. In NOA, the connecting elements (and the corresponding parts of the elements) do not have this function, which is to prevent the mouth from closing any further. In NOA, the complete closure of the mouth is prevented by the upper and lower parts of the device coming together. In this case, it is not the coupling elements that have the function of preventing further closing of the mouth, but the upper and lower parts in the occlusal plane. 

IPPT20241122, UPC LD The Hague, Plant-e v Arkyne
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: (i) Technical equivalence: does the variation solve (essentially) the same problem that the patented invention solves and performs (essentially) the same function in this context? (ii) Is extending the protection of the claim to the equivalent proportionate to a fair protection for the patentee: in view of his contribution to the art and is it obvious to the skilled person from the patent publication how to apply the equivalent element (at the time of infringement)? (iii) Reasonable legal certainty for third parties: does the skilled person understand from the patent that the scope of the invention is broader than what is claimed literally? (iv) Is the allegedly infringing product novel and inventive over the prior art? (i.e. no successful Gillette/Formstein defence). Fair protection: the patent claims a new category of microbial fuel cells – a fairly broad scope of protection is therefore in line with the contribution of the art. Legal certainty requirement [...] is met if the skilled person understands that the patent claim leaves room for equivalents because the teaching of the patent is (clearly) broader than the wording of the claim and there is, still in the eyes of the skilled person, no good reason to limit the scope of protection of the claim to a (method using a) device as claimed.

IPPT20240603, UPC CFI, LD Hamburg, Ballinno v UEFA
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.