UPC CoA 335/2023

Order of the Court of Appeal revoking the Munich Local Division's provisional measures order in favour of NanoString Technologies Inc. and NanoString Technologies Germany GmbH and NanoString Technologies Netherlands B.V. against President and Fellows of Harvard College and 10x Genomics, Inc. concerning EP 4 108 782 (multiplex in situ detection). The Court of Appeal found that the balance of probabilities indicated the patent was likely invalid (lack of inventive step) given prior art D6, such that a sufficient degree of certainty under Rule 211.2 RoP was lacking. Applicants bear costs. The order sets out important principles on patent claim interpretation, claim scope, and the standard for granting provisional measures.

Court of Appeal rectification order correcting a slip in Headnote 2 of the 26 February 2024 order. The corrected headnote confirms that the patent claim is the decisive basis (not merely a starting point) for determining the scope of protection under Art. 69 EPC; the provisional measures application against NanoString was ultimately denied by the CoA as the patent was more likely than not invalid.

Court of Appeal order (26 February 2024, German language version) denying provisional measures against NanoString. The CoA held that the patent was more likely than not invalid, laid down principles on patent claim interpretation under Art. 69 EPC, burden of proof in provisional measure proceedings, and formal requirements under R. 206 RoP.

German-language rectification order (11 March 2024) correcting a slip in Headnote 2 of the CoA's 26 February 2024 provisional measures order, with corrected formulation of the patent claim interpretation principles under Art. 69 EPC.