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

IPPT20251118, UPC CFI, LD The Hague, Advanced Cell Diagnostics v Molecular Instruments
No infringement by equivalence with regard to the missing ‘non-overlapping’ feature. In view of the legal certainty for third parties, the Court finds it difficult if not impossible to properly construe how much overlap would then still be equivalent. The nucleotide overlap in the defendant’s products has technical function of its own.  
 

IPPT20251010, UPC CFI, LD The Hague, HL Display v Black Sheep Retail
Infringement by equivalence as the protrusion is technically equivalent (Article 2, Interpretation Protocol). Also in case BSRP were followed and one would draw the borderline between the first and second arm differently so that the protrusion/rail that contains a stop surface in the BSRP Product is considered to be located on the second arm (see the Court’s drawings in 11.4.3), as BSRP maintains, this would amount to infringement by equivalence as the protrusion is technically equivalent.
 

IPPT20250911, UPC CFI, LD The Hague, Washtower v Wasombouw
Test for equivalence: finding of equivalent patent infringement always requires that the variant performs essentially the same function as the element recited in the claim, with essentially the same result. The same applies to the assumption that protection cannot extend to what is not new or inventive over the prior art. In the absence of a decision by the Court of Appeal and given that both parties referred to this test without proposing or even debating an alternative, the Court sees no reason to deviate from the (four questions) test it applied in Plant-e v. Arkyne. Legal certainty for third parties: A skilled person would in principle understand that a material different from metal would work to retain the washing machine, provided the used material is strong enough to prevent a washing machine from falling off. While for the cover plate, both metal and fibre reinforced plastic are contemplated, the description as such does not give a clue as to why the retaining member, despite this understanding by the skilled person, can only be of metal. Absent such indications, a third party can not genuinely believe that he/she can take advantage of the claimed invention, by simply using a non-metal strip to circumvent literal infringement. 

IPPT20250801, UPC CFI, LD Paris, NJ Diffusion v Gisela Mayer
No equivalency in the absence of the same function (Article 2, Interpretation Protocol). Appropriate to first answer a question that is the lowest common denominator and constitutes the first criterion for examining equivalence: Do the modified (or substitute) means essentially fulfil the same function to achieve essentially the same effect?. 

IPPT20251022, UPC CFI, LD The Hague, Abbott Diabetes v Sinocare
Claim interpretation - the feature that ‘(...) the timeline graph includes event data icons (318)’ - equivalents (Article 69 EPC). More likely than not that this feature requires the event data icons to be displayed on the timeline graph itself, i.e. in case the timeline graph screen has several panels, this feature teaches that the data icons must be displayed on the panel showing the timeline graph. It is important to note that UP 471 focuses specifically on the layout of the display for the receiver unit of a glucose monitoring system. In fact, the layout of the display is the main teaching of the patent, describing and claiming the layout of the display with/in great detail. A difference in the layout of the display is therefore meaningful and can be a key point, even though another layout may have the same function. No infringement because the event data icons are not included in the timeline graph.
 

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 CFI, 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.