CUP&CINO v ALPINA Coffee Systems (CFI, 22 October 2026)

Dhenne Avocats · 22 October 2026

Our analysis

Summary

By a decision of 22 October 2026 (UPC_CFI_47/2025, counterclaim for revocation UPC_CFI_68/2025), Panel 2 of the Düsseldorf Local Division dismisses the action brought by CUP&CINO Kaffeesystem-Vertrieb GmbH & Co. KG against ALPINA Coffee Systems GmbH for infringement of EP 3 281 569, refuses as late the infringement claims based on the auxiliary requests and allows the counterclaim for revocation, claim 1 lacking novelty, save for claim 12 and claim 13 in so far as it refers back to claim 12.

Facts and procedure

CUP&CINO owns EP 3 281 569, filed on 9 August 2016 and granted on 4 July 2018, which relates to a modular frothing unit. Claim 1 covers a device for frothing a liquid with a single second line and a thick-film heating element. An opposition filed on 4 April 2019 was withdrawn and the proceedings were closed on 3 March 2022. CUP&CINO alleged that the ALPINA Latte Perfetto Duo milk frother, obtained through a test purchase in Germany, infringes claim 1, in the alternative as worded in several auxiliary requests, and dependent claims 2 to 5, 8, 9, 12 and 13, and sought among other things an injunction for Austria, Germany, Denmark, France, Italy and the Netherlands, recall, destruction, damages and an interim award of EUR 50,000. ALPINA counterclaimed for full revocation in those states for added matter, lack of novelty and lack of inventive step. After an order of the judge-rapporteur of 28 April 2026, CUP&CINO for the first time based its injunction requests on infringement of the auxiliary requests in a submission of 15 May 2026. The oral hearing took place on 18 July 2026.

Question

May the patentee base its infringement action, for the first time during the interim procedure, on the claims of its auxiliary requests, and how is the validity of a dependent claim with multiple back-references assessed where the patentee does not specify which combinations it defends?

Decision

The panel leaves open whether the new claims are an amendment under Rule 263.1 RoP or late submissions under Rules 30.2 and 9.2 RoP and holds them inadmissible on each basis: the patentee did not explain why they were absent from its initial pleadings, the defendant would have had to answer eight new infringement allegations without the time limits of the written procedure, and the infringement action must be adapted to auxiliary requests at the time the amendments to the patent are filed (paras. 41 to 44). On validity, as the patentee defends the dependent claims in their granted order, the panel holds that it must identify the combinations relied on, failing which the review covers every combination within the wording and the invalidity of any one of them defeats the dependent claim as a whole (paras. 79 and 80). The added matter attack is rejected (paras. 82 to 89), but claim 1 is anticipated by each of WO 400, WO 403 and EP 330 (para. 91), as are all dependent claims except claim 12 and claim 13 in so far as it refers back to claim 12 (para. 117). The admissible infringement action is dismissed and the counterclaim succeeds only to that extent (paras. 40 and 81).

Key points for practice

• Auxiliary requests cannot be used to broaden the infringement case during the interim procedure: any adaptation of the infringement action must accompany the application to amend the patent (paras. 43 and 44).
• A patentee defending dependent claims with multiple back-references must specify the combinations relied on, failing which a single invalid combination brings down the whole claim (para. 80, citing UPC_CoA_473/2025).
• The claimed heating element is a generic term with no fixed number, so several elements in series may meet it, whereas the « single second line » is strictly singular (paras. 56 to 59).
• The late added matter objection directed at the single second line is rejected under Rule 9.2 RoP (para. 89).

Provisions applied

Rules of Procedure

Rules 9.2, 19.7, 30.2 and 263 RoP

UPC Agreement

Articles 32(1), 33(1)(a) and 83(3) UPCA

EPC

Articles 54(3), 69 and 123(2) EPC

Regulation (EU) No 1215/2012

Articles 24(4), 71a and 71b

Related decisions

• CUP&CINO v ALPINA Coffee Systems, 28 April 2026, order of the judge-rapporteur in UPC_CFI_47/2025 requiring a structured presentation of the arguments, after which the patentee amended its requests on 15 May 2026.
• CUP&CINO v ALPINA Coffee Systems, 28 April 2026, the same order published in the counterclaim for revocation UPC_CFI_68/2025.
• CUP&CINO v ALPINA Coffee Systems, 22 October 2026, decision of the same day between the same parties on EP 3 610 762.

Prepared by Dhenne Avocats from the official decision, consulted on 22 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.