10x Genomics v Curio Bioscience (CFI, ORD_23580/2024, 30 April 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By an order of 30 April 2024 (UPC_CFI_463/2023), the Düsseldorf Local Division (presiding judge and judge-rapporteur: Thomas), hearing an application for provisional measures by 10x Genomics, Inc. against Curio Bioscience Inc. based on EP 2 697 391, found the application partly justified: an injunction is warranted under product claim 14 in Germany, France and Sweden, while indirect infringement of method claim 1 was rejected.

The order is useful on three cross-cutting points: the presumption arising from entry in the national register, knowledge of infringement (which includes wilful blindness, without any general duty to monitor the market) and the inapplicability of security for costs under Rule 158 RoP in urgent proceedings, whereas an interim award of costs under Rule 211.1(d) RoP may be made in favour of either party. The injunction carries a penalty of up to EUR 100,000 per day and is conditional on security of EUR 2,000,000, each party must provisionally reimburse EUR 100,000 of the other’s costs.

Facts and procedure

10x Genomics, registered as sole proprietor following an assignment of 30 November and 1 December 2023, sought to restrain the offer and supply of the « Curio Seeker Spatial Mapping KIT » in Germany, France and Sweden, primarily under method claim 1 and in the alternative under claim 14, with penalty payments. Curio disputed infringement (randomly distributed barcoded beads, array destroyed before release), validity (Chen, Chetverin, Harvard, Kuhn, added matter in claim 1), entitlement and urgency, and sought compensation for reputational harm. 10x for its part sought security for its costs. An oral hearing took place on 26 March 2024.

The applicable law

Provisional measures are governed by Art. 62 UPCA and Rules 206 and 211 RoP, the court must be satisfied with a sufficient degree of certainty that the applicant is entitled, that the patent is valid and that it is infringed. Claims are construed under Art. 69 EPC and its Protocol. Indirect infringement falls under Art. 26 UPCA.

Question

Are entitlement, infringement, validity and urgency established with sufficient certainty to justify a provisional injunction, and may security for costs be ordered in urgent proceedings?

Decision

Entry in the national register raises a presumption of entitlement (Rule 8.5(c) RoP), which Curio did not rebut. Statements made during prosecution are not an aid to construction. A « tissue sample » implies preserved morphology. Literal use of claim 14 is more likely than not, the poly-T element not being seriously disputed (III.4), claim 1, however, is not indirectly infringed, since there is no release from the surface of an array that has already been broken up (III.6). None of the prior art raises serious doubts as to the validity of claim 14. Urgency is established: 10x’s decision-makers had no knowledge of the acts in the three States before October 2023, the decisive event being a video call on 10 November 2023, and the application was filed on 4 December 2023, the letters, events and posts relied on did not disclose circumstances calling for inquiry (IV.1). The balance of interests favours 10x, Curio having failed to substantiate the alleged risk of insolvency, its sales in the three States being limited (V). 10x’s request for security for costs was rejected, Rule 158 RoP applying only to main proceedings, as was Curio’s claim for damages, since Art. 62 UPCA and Rule 211.1 RoP make no provision for damages (VI.4 and VI.5). Security was required from the applicant, set at the value in dispute, EUR 2,000,000, Curio having failed to quantify its risk (VII). No costs decision was made, main proceedings being due to follow, but the interim awards of costs requested by both parties at the hearing were admitted under Rule 263 RoP and granted for half of the EUR 200,000 each acknowledged, each party having failed as to half (VIII).

Key points for practice

• Entry in the national register raises a presumption of entitlement which the defendant must rebut.
• Wilful blindness counts as knowledge of infringement, but there is no general duty to monitor the market. The defendant must show the specific circumstances which called for inquiry.
• A product claim may support an injunction where indirect infringement of the method claim is not established.
• Practical point: security for costs under Rule 158 RoP is not available in urgent proceedings, a party wishing to secure its costs should seek an interim award under Rule 211.1(d) RoP, which the division also grants to a defendant.

Provisions applied

Agreement on a Unified Patent Court

Arts 25(a), 26, 41, 42, 62, 68(3) and 69

Rules of Procedure

Rules 8.5, 118.5, 158, 159, 206, 209.2, 211, 213, 263, 352 and 354

European Patent Convention

Art. 54, 56, 69, 123(2)

Case law cited

10x Genomics v NanoString, Court of Appeal, 26 February 2024 (UPC_CoA_335/2023), NanoString v 10x Genomics, Munich Local Division, 19 September 2023, SES-imagotag v Hanshow, Munich Local Division, 20 December 2023, Düsseldorf Local Division, 9 April 2024, UPC_CFI_452/2023, Vienna Local Division, 13 September 2023 (UPC_CFI_182/2023), Munich Local Division, 19 December 2023 (UPC_CFI_249/2023), Court of Appeal (UPC_CoA_433/2023 et seq.)

Prepared by Dhenne Avocats from the official decision, consulted on 10 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.