10x Genomics v Curio Bioscience (CFI, ORD_598272/2023, 30 April 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 30 April 2024 (UPC_CFI_463/2023), the Düsseldorf Local Division prohibited Curio Bioscience from offering, placing on the market, using, importing or stocking the « Curio Seeker » kit in Germany, France and Sweden, finding infringement of claim 14 (an array) of 10x Genomics’ EP 2 697 391. Indirect infringement of claim 1 (a method) was rejected. The order clarifies the presumption attached to registration, the assessment of urgency where the proprietor is unaware of the infringement, and refuses security for costs in summary proceedings. It is relevant to proprietors seeking interim relief against a small competitor, whose financial fragility does not prevent an injunction.

Facts and procedure

10x Genomics, registered as sole proprietor of the patent in the German, French and Swedish registers following an assignment in December 2023, applied for provisional measures on 4 December 2023 against Curio Bioscience, a US company selling a spatial RNA analysis kit using randomly distributed barcoded beads. The patent, granted in 2019, was never opposed. The hearing took place on 26 March 2024. Curio disputed standing, infringement, validity (Chen, Chetverin, WO 2012/048341, Kuhn), urgency and proportionality, and sought compensation for reputational damage.

The applicable law

The division applied Art. 62 UPCA and Rules 206, 209 and 211 RoP: the court must be satisfied with a sufficient degree of certainty as to entitlement, validity and infringement, then assess the necessity of the measures (urgency and harm) and weigh the parties’ interests. Claim construction follows Art. 69 EPC and its Protocol, according to the approach laid down by the Court of Appeal on 26 February 2024.

Question

Does an array of randomly distributed barcoded beads, whose positions are only determined after manufacture, reproduce a claim requiring each species of probe to occupy a distinct position? Did the proprietor act with the required urgency, and can security for costs be ordered in summary proceedings?

Decision

Standing was established: registration raises a presumption of entitlement under Rule 8.5(c) RoP and reverses the burden of proof, and the allegations about the Karolinska Institutet’s rights did not rebut it (II). Claim 14 protects a product: the reference to its use is a statement of purpose that does not limit its scope, and it does not matter whether the probes’ positions are fixed before or after deposition, provided they are determined when the array is provided, the file supplied with the kit links each barcode to its position (III.3 and III.4). By contrast, releasing DNA « from the surface of the array » (claim 1) requires an array to still exist, which is no longer the case where amplification takes place on individual beads (III.6). The prior art relied on raised no serious doubt as to the validity of claim 14, and the absence of any opposition for several years is an indication. Urgency was established: absent actual knowledge before October 2023, only grossly negligent ignorance could be held against the applicant, and there is no general duty to monitor the market, the application must be filed within one month of having the necessary evidence (IV.1). The harm is hard to repair, since research teams do not switch products mid-project (IV.2). The balance of interests favoured 10x Genomics, Curio’s small size and the risk of investors withdrawing were not enough (V). Security for costs under Rule 158 has no place in summary proceedings, since Rule 211.1(d) allows interim reimbursement of costs (VI.4), the claim for reputational damage was inadmissible. Order: injunction with penalties of up to EUR 100,000 per day, reciprocal interim reimbursement of EUR 100,000 in costs, each party having lost half, and enforcement conditional on 10x Genomics providing security of EUR 2,000,000.

Key points for practice

• Registration in the national register raises a presumption of entitlement which the defendant must rebut with specific evidence, including on foreign law.
• Urgency runs from actual knowledge of acts in the states concerned. A general letter about a patent portfolio or an employee’s « like » on social media does not start the clock.
• Security for costs is not available in summary proceedings, and no decision in principle on costs is made where main proceedings follow. Interim reimbursement of costs is, however, open to both parties.
• Practical point: in summary proceedings, a defendant disputing infringement on the basis of a scientific publication describing its process must show, feature by feature, how its product departs from it.

Provisions applied

Agreement on a Unified Patent Court

Arts 25(a), 26, 41, 42, 47, 62, 68, 69, 73 and 82

Rules of Procedure

Rules 8.5, 118.5, 158, 159, 171.2, 205, 206, 209, 211, 213, 220.1(c), 263 and 354

European Patent Convention

Arts 54, 56, 69 and 70

Case law cited

NanoString v 10x Genomics, Court of Appeal, 26 February 2024, NanoString v 10x Genomics, Munich Local Division, 19 September 2023, Mammut v Ortovox, Düsseldorf Local Division, 9 April 2024, Ortovox v Mammut, Düsseldorf Local Division, 11 December 2023, SES-imagotag v Hanshow, Munich Local Division, 20 December 2023, Meril v Edwards Lifesciences, Munich Local Division, 19 December 2023, Cup&Cino v Alpina, Vienna Local Division, 13 September 2023, Court of Appeal, 3 April 2024, UPC_CoA_433/2023 and others.

Related decisions

• 10x Genomics v Curio Bioscience, 3 December 2024, order in the main action (UPC_CFI_140/2024) building on the Rule 158 analysis and ordering the defendant to provide security for costs.

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.