Advanced Brain Monitoring v Koninklijke Philips (CFI, 4 August 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order dated 10 July 2025 (the date shown at the head of the document, which nonetheless refers to a reply by the defendants of 22 July 2025, UPC_CFI_43/2025, ACT_3301/2025, App_32667/2025), the judge rapporteur of The Hague Local Division dismissed as devoid of purpose Advanced Brain Monitoring’s conditional application to base its infringement action against Koninklijke Philips and two other companies on the B2 version of EP 2 437 696, as maintained in amended form by the EPO. The order simply deals with a statement of claim filed on the basis of the B1 text.

Question

Must a patentee whose patent has been maintained in amended form seek leave to amend its statement of claim, filed on the basis of the B1 version, in order to rely on the B2 version?

Decision

No. Under Art. 68 EPC, a limited patent is deemed never to have had, to the extent of the limitation, the effects set out in Arts 64 and 67 EPC: the B1 version no longer existed when the statement of claim was filed, and the B2 text applies from the date of grant (paragraph 3). The conditional application under Rule 263 RoP is therefore devoid of purpose and dismissed, applying Rule 360 RoP by analogy (paragraphs 2 and 4). For ease of reference, and as the defendants raised no objection (paragraph 5), the revised statement of claim (Annexes TW04 and TW05) is admitted in place of the original one.

Key points for practice

• Practical point: once a patent is maintained in amended form, an action brought on the B1 text automatically concerns the B2 text, filing a revised statement of claim is enough, without leave under Rule 263 RoP.

Provisions applied

Rules of Procedure

Rules 263 and 360

European Patent Convention

Art. 64, Art. 67 and Art. 68

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.