Agathon v Intercom (CFI, 5 May 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In a decision of 5 May 2026 (UPC_CFI_727/2024 and UPC_CFI_493/2025), the Milan Local Division rules on Agathon’s infringement action against Intercom (manufacturer) and Knarr Vertriebs (distributor) on EP 2 363 263 B1 (centring device for a forming tool), and on Intercom’s counterclaim for revocation. On validity, the Division holds claims 1, 2, 5, 6 and 11 to lack novelty over D3 and maintains the patent in amended form (Auxiliary Request 1, combining claims 1 and 3). It dismisses the infringement action, however, since the second row of rolling bodies in the attacked products does not abut the edge of the bolt in the opened position. The decision shows how the proprietor’s statements before the EPO are used in construing the claim and how strictly an inventive-step attack must be substantiated.

Facts and procedure

The action, filed on 2 December 2024, concerns claims 1 to 3, 5 to 9 and 11 of the patent, in force in Austria, Belgium, Germany, France and Italy. Intercom counterclaimed for revocation for lack of novelty and inventive step. Agathon filed four conditional auxiliary requests on 8 August 2025. Physical samples were filed on 10 and 17 March 2026. At the hearing of 24 March 2026, Intercom declined to make its counterclaim conditional.

The applicable law

Claim scope is assessed under Art. 69 EPC and its Protocol, in the same way for infringement and validity. A patent may be revoked for lack of novelty or inventive step (Art. 54 and 56 EPC), and may be maintained in amended form if the amendments comply with Art. 84 and 123(2) and (3) EPC. The admissibility of late evidence is governed in particular by Rules 30 and 118 RoP.

Question

Are the claims new and inventive over the prior art relied on, and can the patent be maintained in the form of Auxiliary Request 1?

Decision

Features 1.8, 1.9 and 1.11 are construed in light of the description, the drawings and Agathon’s statements before the EPO describing the abutment as ‘essential’, treated as an indication of the skilled person’s understanding (section 4). Anticipation requires a direct and unambiguous disclosure in a single document (section 5.2). D3 discloses features 1.1 to 1.11 in its Figure 3 embodiment, so claims 1, 2, 5, 6 and 11 lack novelty. D1, D2 and D5 to D8, in which the rolling-body rows are loaded successively rather than simultaneously, do not anticipate (sections 5.2.1 to 5.2.4). Intercom’s sample of 17 March 2026 is excluded as late.

The inventive-step attack is largely inadmissible for lack of substantiation. Claims 3 and 4 are inventive, D3 teaching away from the claimed modification (section 5.3). Auxiliary Request 1 complies with Art. 84 and 123(2) and (3) EPC, the patent is maintained in that form and the counterclaim otherwise dismissed (sections 6 and 7).

Infringement is assessed against the amended patent. Features 1.9 and 1.11 are missing: in the opened position, the second row of rolling bodies sits at a distance from the edge, so that the sleeve runs onto the two rows one after the other rather than practically simultaneously, as in prior art D1 and D2, the reduction of load peaks is not achieved, which rules out literal and equivalent infringement, and the Formstein/Gillette defence is held well founded (section 8). The order maintains the patent as per Auxiliary Request 1, directs that the decision be sent to the EPO and the national offices, dismisses the infringement action, leaves each party to bear its own costs of the counterclaim and orders Agathon to bear 50% of the costs of each of the two defendants, their joint defence justifying a single assessment. The value of each action is set at EUR 500,000 and the ceiling on recoverable costs at EUR 56,000 per action (section 9).

Key points for practice

• An inventive-step attack not developed document by document is held inadmissible.
• Filing a physical sample a few days before the hearing exposes it to exclusion.
• A product that reproduces the prior art infringes neither literally nor by equivalence: the division accepts the Formstein/Gillette defence (section 8).
• Practical point: the panel offered at the hearing to make the counterclaim conditional on the construction adopted, that choice, which shapes how validity and infringement fit together, is best settled before the hearing.

Provisions applied

Agreement on a Unified Patent Court

Art. 24(1)(c), 25, 26, 63, 64, 67, 68 and 69

Rules of Procedure

Rules 30, 118, 119, 150, 151.1 and 152.2

European Patent Convention

Art. 54, Art. 56, Art. 69 and Protocol, Art. 84, Art. 123(2) and (3)

Case law cited

Court of Appeal, 26 February 2024, 25 September 2024 (UPC_CoA_182/2024), 25 November 2024 (UPC_CoA_457/2024 and UPC_CoA_528/2024), 20 December 2024 (UPC_CoA_402/2024 and UPC_CoA_405/2024) and 3 October 2025 (UPC_CoA_534/2024 and UPC_CoA_19/2025), Munich Local Division, 31 July 2024 (UPC_CFI_233/2023), Paris Central Division, 28 July 2025 (UPC_CFI_239/2024), Düsseldorf Local Division, 31 October 2025 (UPC_CFI_630/2025), Milan Local Division, 27 October 2025 (UPC_CFI_178/2024 and UPC_CFI_432/2024), Network System v Qualcomm, Munich Local Division, 11 March 2026

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.