Advanced Brain Monitoring v Koninklijke Philips (CFI, 3 March 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In a decision of 3 March 2026 issued jointly in the infringement action (UPC_CFI_43/2025) and the counterclaim for revocation (UPC_CFI_103/2025), The Hague Local Division revoked in its entirety Advanced Brain Monitoring, Inc.’s EP 2 437 696 B2, which concerns a wearable positional therapy device for sleep disorders, and dismissed the infringement action against Koninklijke Philips N.V., Philips RS North America LLC and Respironics Deutschland GmbH & Co. KG. Claim 1 as maintained after the EPO proceedings lacks novelty over a 1991 Japanese application (JP H03-49748), and the auxiliary request, which replaces the switch with an accelerometer, lacks inventive step. The decision shows the risk of a broad reading of functional claim features: it exposes the patent to old and basic prior art.

Facts and procedure

The patent, filed on 4 June 2010 claiming US priority of 5 June 2009 and granted on 3 April 2019, was maintained in amended form by an EPO Technical Board of Appeal (paragraph 2). It is validated in Germany, France and the Netherlands, and the opt-out was withdrawn on 20 January 2025 (paragraph 3). The claimant alleged that the defendants’ NightBalance device infringed claims 1, 2 and 4. The action was filed on 21 January 2025, followed by the statement of defence and counterclaim on 29 April 2025 (paragraph 15). An auxiliary request to amend was admitted on 31 October 2025 (paragraph 16) and Philips narrowed its invalidity attacks (paragraph 19). No preliminary objection was raised, and jurisdiction rested on Articles 4 and 8 of Regulation (EU) No 1215/2012 (paragraphs 20 and 21).

The applicable law

Claims are interpreted under Article 69 EPC and the principles laid down by the Court of Appeal in NanoString v 10x Genomics (paragraph 30). The grounds upheld were lack of novelty and, for the auxiliary request, lack of inventive step, assessed from the perspective of an electrical engineer with general experience of therapeutic devices (paragraph 31).

Question

Is a positional therapy device with a position detector, a microcontroller and a reset function novel over an earlier device using a mercury switch and a simple logic circuit, and is replacing that switch with an accelerometer inventive?

Decision

The division construed the features broadly: the detector need only detect the supine position, and a simple switch may suffice (paragraphs 34 and 35), a microcontroller is at least an integrated chip that receives data and generates a control signal, without requiring memory or firmware (paragraphs 36 to 40), switching the device off and on counts as a reset (paragraphs 41 and 42). In JP748, the mercury switch acts as the position detector (paragraphs 46 and 47) and the NE 555/CMOS 4017 circuit as the microcontroller (paragraphs 48 to 50), so claim 1 is anticipated (paragraph 52), as is claim 2, while claim 4 is obvious (paragraph 53).

The auxiliary request, which requires an accelerometer, is novel (paragraph 55). However, JP748 is a realistic starting point (paragraph 56), and the ban on mercury together with common general knowledge of accelerometers made the change obvious (paragraphs 57 to 59). The patent was revoked in its entirety, with effect once the decision becomes final (paragraphs 60 and 62). Infringement was not examined (paragraph 61). The claimant was ordered to pay Philips EUR 39,000 in costs in each of the two actions, an amount agreed between the parties and including court fees (paragraph 63).

Key points for practice

• Read functionally, a microcontroller may cover a simple logic circuit, which widens the relevant prior art accordingly (paragraphs 36 to 40 and 48 to 50).
• Old and technically modest prior art can be a realistic starting point for inventive step (paragraph 56).
• A known regulatory constraint, such as the mercury ban, can supply the motivation to replace a component with its common equivalent (paragraphs 57 to 59).
• Practical point: before suing, a patentee should test the functional features of its claim, as the court is likely to read them, against the simplest prior art.

Provisions applied

Agreement on a Unified Patent Court

Arts 73(1) and 82

Rules of Procedure

Rules 19.7, 105.5, 118.8, 220.1(a), 263 and 354

European Patent Convention

Art. 69

Other provisions

Regulation (EU) No 1215/2012, Arts 4 and 8

Case law cited

Court of Appeal, NanoString v 10x Genomics, 26 February 2024

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.