UPC_CFI_376/2023

DEVICE FOR TREATING NIGHT TIME BREATHING PROBLEMS

InfringementMain Infringement ActionBrussels LDInfringementCase Closed

Overview Decisions Reasoning Citations Documents Timeline

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 infringement Absence of functional equivalence bars any finding of infringement by equivalence regardless of which equivalence test is applied For 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)

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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.