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UPC CFI 376/2023

Oct 23, 2023·EP2331036 · DEVICE FOR TREATING NIGHT TIME BREATHING PROBLEMS

Action number: ACT 581538/2023

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Case details
Status
Case Closed (No infringement)
Action
Infringement
Category
Main infringement action
Parties
Claimants
  • Name withheld (GDPR)
Representatives
Respondents
Representatives
Division
Brussels LD
Judges
Technology
  • Instruments
    Medical technology
Language
Dutch
First decided
Sep 17, 2024
How this compares
The court's record for this kind of case, counted in first-instance rulings. A figure in brackets is the number of rulings a rate rests on.
Infringement foundMedian days to first decision
All UPC53% (62/117)124
Brussels LDLockedLocked
Judge Samuel GranataLockedLocked
Judge András KupeczLockedLocked
Judge Margot KokkeLockedLocked

At the UPC: OrthoApnea S.L. (7 cases)

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Related cases
All proceedings on this patent

3 other defendants litigating the same or a related patent

UPC CoA 232/2025·UPC CoA 456/2024·UPC CoA 430/2024

Start a free trial to see how each one ended.

More cases: Brussels LD·2023

Decisions
  • 2025-01-17
    Infringement ActionPublic

    Summary: Decision on the merits by the Brussels Local Division (full panel) in an infringement action concerning a patent on a medical device (sleep apnea treatment). The court dismissed both the literal infringement claim and the infringement-by-equivalence claim against OrthoApnea S.L. and Vivisol B BV. On literal infringement, the court interpreted the patent claims in light of the claim as a whole and found the accused products did not meet all claim features. On equivalence, the court found no functional equivalence regardless of which equivalence test was applied. The court also lifted the earlier evidence-preservation order (seizure) and ordered the claimant (unnamed, anonymized) to pay the defendants' costs. A key procedural holding addressed the temporal conditions for bringing main proceedings following evidence preservation.

    Show the legal issues (5)
    • Literal infringement assessment under Art. 69 EPC and Protocol
    • Infringement by equivalence (functional equivalence test)
    • Temporal conditions for main proceedings following evidence preservation under Rule 198(1) RoP
    • Effect of service/upload date on Rule 198(1) compliance
    • Consequences of dismissal on evidence-preservation order (Rule 198(2) RoP)
  • 2024-09-17
    Infringement ActionPublic

    Summary: The Brussels Local Division issued a procedural order following an interim conference under R. 105.5 RoP, setting the schedule and framework for the oral hearing in this infringement action concerning EP 2 331 036.

    Show the legal issues (3)
    • Interim conference
    • Procedural schedule
    • R. 105.5 RoP
  • 2024-07-19
    Public

    Summary: The Brussels Local Division (full panel) dismissed the respondents' application for review under R. 333 RoP of an earlier judge-rapporteur order that had denied their objection against the claimant's equivalence arguments introduced in the reply. The panel upheld the judge-rapporteur's finding that introducing an infringement argument based on equivalence in the reply did not constitute a fundamental new ground requiring prior leave under R. 263.1 RoP.

    Show the legal issues (3)
    • Review of judge-rapporteur order (R. 333 RoP)
    • Admissibility of equivalence arguments introduced in reply
    • Fundamental change of claim vs. new argument (R. 263.1 RoP)
Documents
Show all 293 documents
Document titleDatePublic
Headnote-and-Keyword-Translated2025-01-21Not public
Headnote and Keywords2025-01-20Not public
Headnote-and-Keywords2025-01-19Not public
DecisionOutcome2025-01-17Not public
Decision2025-01-17Public
Decision2025-01-17Not public
Final Order - R.105.5 RoP2024-09-23Not public
Interim conference september 6th 20242024-09-23Not public
Interim conference september 6th 20242024-09-23Not public
Final Order - R.105.5 RoP2024-09-23Not public
Coverage: Partial.Reasoning extracted with partial coverage — some sections may be incomplete.
Plain-English summary

An anonymised claimant brought an infringement action before the Brussels Local Division against OrthoApnea and Vivisol B BV concerning a patent on a device for treating night-time breathing problems (EP2331036). The court dismissed the action in full, finding neither literal infringement — because the accused products did not meet all claim features when interpreted in context — nor infringement by equivalence, since no functional equivalence was demonstrated. The earlier evidence preservation order was lifted and costs were awarded to the defendants.

Accepted arguments
What the court agreed with — by party.

  • No literal infringement: the accused OrthoApnea products do not meet all claim features when claims are interpreted in light of the claim as a whole

    RespondentLegal basis: Art. 69 EPC and Protocol on Interpretation; Arts. 25-26 UPCA

    Note: The court followed a two-step approach: first assessing literal infringement by interpreting the claims in context, finding one or more features absent.

  • No infringement by equivalence because there is no functional equivalence regardless of which equivalence test is applied

    RespondentLegal basis: Art. 69 EPC Protocol; UPC doctrine of equivalents

    Note: The court held that the absence of functional equivalence is a threshold bar to any equivalence finding, making the choice of test irrelevant.

  • Temporal condition for main proceedings following evidence preservation under R. 198(1) RoP is satisfied if the Statement of Claim is uploaded to CMS within the prescribed period, even if translation and service come later

    RespondentLegal basis: R. 198(1) RoP; R. 271(8) RoP

    Note: This procedural holding favoured neither party substantively but confirmed the claimant had validly brought main proceedings in time.

Rejected arguments
What the court did not agree with — and why.

  • Literal infringement of the patent on the medical device (sleep apnea treatment) by OrthoApnea and Vivisol products

    ClaimantLegal basis: Art. 69 EPC; Art. 25 UPCA

    Reason: Claim interpretation in light of the claim as a whole showed the accused products did not meet all required features of the claim.

  • Infringement by equivalence of the same patent claims

    ClaimantLegal basis: Art. 69 EPC Protocol; doctrine of equivalents

    Reason: No functional equivalence was established, which the court treated as a prerequisite for any equivalence doctrine analysis.

Key legal principles
Doctrines and rules cited in the reasoning.
Two-step infringement analysis under Art. 69 EPC: literal infringement first, then equivalence if no literal infringementAbsence of functional equivalence bars any finding of infringement by equivalence regardless of which equivalence test is appliedFor evidence preservation followed by main proceedings, upload of Statement of Claim to CMS within R.198(1) period satisfies the temporal condition even if translation/service is completed later (R.271(8) RoP)Upon dismissal of infringement action, earlier evidence preservation order must be lifted and seized goods returned (R.198(2) RoP)Unsuccessful claimant bears defendant costs; damages from the seizure to be assessed in follow-on proceedings (R.125 RoP)

Browse other cases on this principle.

Claim construction notes

The Brussels Local Division interpreted the claims of the sleep-apnea device patent (EP2331036) in context of the claim as a whole, applying Art. 69 EPC and its Protocol. The court found that one or more features required by the claims were not present in the accused products on literal reading. On equivalence, the court focused on whether the variant performed the same function; finding no functional equivalence, it did not reach other steps of equivalence analysis.