The UPC CoA’s first substantive order—central issues clarified, but on a high level

Matthias Leistner and Sebastian Berns

Journal of Intellectual Property Law and Practice, 2024, vol. 19, issue 10, 764-769

Abstract: In its decision, the UPC Court of Appeal confirms the application of key principles of patent claim interpretation for unitary patents.With regard to the inventive step, a tentative path is chosen that does not clearly follow the problem–solution approach of the European Patent Office and instead, comprehensively takes the state of the art into account at the outset.The standard for the necessary probability of infringement and validity is set at a preponderance of probability (sufficient degree of certainty, ie more likely than not).Furthermore, the temporal and factual necessity of the injunction is also important in determining whether a preliminary injunction should be ordered. Ultimately, the granting of injunctive relief hinges on an overall weighing of the interests.

Date: 2024
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