Alexion Pharmaceuticals v Samsung Bioepis NL (CoA, 20 December 2024)
| Date | 20 December 2024 |
|---|---|
| Court | CoA |
| Division | Luxembourg (LU) |
| Type of action | Appeal RoP220.1 |
| Registry reference | APL_40470/2024 · ORD_60219/2024 |
| Parties | Alexion Pharmaceuticals, Inc. v. Samsung Bioepis NL B.V. |
Official decision (PDF) · UPC registry entry
Dhenne Avocats represents claimants and defendants in European patent disputes before the Unified Patent Court, including the Paris divisions.
Dhenne Avocats · 10 October 2026
Our analysis
Summary
In an order of 20 December 2024 (UPC_CoA_402/2024), the Court of Appeal dismissed Alexion’s appeal against the Hamburg Local Division’s refusal to grant provisional measures against Samsung Bioepis’s marketing of Epysqli®, a biosimilar of Soliris® (eculizumab), under EP 3 167 888. The Court declined to correct, by way of interpretation, the sequence SEQ ID NO: 4 recited in claim 2 so as to exclude its first 22 amino acids: neither the existence of the error nor the precise way to correct it was sufficiently certain to the skilled person. Read as including those 22 amino acids, the claim is more likely than not to be revoked for insufficiency. The Court ruled the same day, in parallel terms, on Alexion’s appeal against Amgen. The order sets out the strict standard for correcting errors in claims and gives weight to the applicant’s own statements during grant.
Facts and procedure
The patent stems from a chain of divisional applications going back to an international application filed on 15 March 2007. It was granted with unitary effect in May 2024 following T 1515/20, in which the EPO Technical Board of Appeal refused to replace SEQ ID NO: 4 with residues 23 to 236 and ordered grant on auxiliary request 5 (paragraphs 5 and 11). Samsung Bioepis filed an opposition on 2 May 2024 (paragraph 5). Alexion sought from the Hamburg Local Division a cease and desist order backed by penalty payments and surrender of products. The Division dismissed the application on 26 June 2024, with reasons of 17 July 2024, finding infringement likely but validity not sufficiently certain (paragraphs 14 to 16). On appeal, Alexion withdrew at the hearing its main request for remittal to the same panel, so only its alternative request for the measures to be granted was decided (paragraphs 17 and 22).
The applicable law
Claim interpretation follows the approach laid down by the Court of Appeal in NanoString v 10x Genomics: the claim is the decisive basis for the scope of protection, read in the light of the description and drawings (paragraph 35). The ground of invalidity relied on was insufficiency under Article 83 EPC.
Question
Can claim 2 be read as excluding the first 22 amino acids of the light chain defined by SEQ ID NO: 4, on the footing that they are a signal peptide included in error, and is validity then sufficiently certain to justify provisional measures?
Decision
A linguistic error, spelling mistake or other inaccuracy in a claim can only be corrected by interpretation if the existence of the error and the precise way to correct it are sufficiently certain to the average skilled person, on the basis of the claim, description, drawings and common general knowledge. This is a strict standard, since an error as such creates legal uncertainty for third parties (paragraphs 35 and 36). The Court rejected the purposive reasoning adopted at first instance (paragraphs 33 and 34) and found that the expert statements did not show why the skilled person would analyse the sequence or regard it as wrong (paragraphs 37 to 41). Alexion’s arguments before the Board, endorsed by it, confirmed the uncertainty and indicated the skilled person’s view at the filing date (paragraphs 42 and 43). The references to eculizumab in the description did not alter this (paragraph 44), and the length of the signal peptide was itself uncertain, prediction tools giving only probabilistic results (paragraphs 45 to 47). The claim therefore includes the 22 amino acids, so read, revocation for insufficiency is more likely than not. The appeal was dismissed with costs against Alexion (paragraphs 48 and 49).
Key points for practice
- Correcting an error by interpretation requires two cumulative certainties, as to the error and as to its correction, judged by the average skilled person.
- Positions taken by the applicant during grant, especially when endorsed by a Board of Appeal, may be held against it when the claim is construed.
- Withdrawing a request for remittal at the hearing leads the Court of Appeal to rule on the measures itself, without deciding the complaints against the impugned order (paragraph 23).
- Practical point: with biological sequences, an inconsistency known at grant should be cured before the EPO, the UPC will not correct it at the provisional measures stage.
Provisions applied
- Rules of Procedure
- Rules 9.3, 221, 222.1, 225, 226, 236 and 238
- European Patent Convention
- Art. 83
- Case law cited
- NanoString v 10x Genomics, Court of Appeal, 26 February 2024, EPO Technical Board of Appeal, T 1515/20, 21 September 2023
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.
Going further
Lexicon: UPC Court of Appeal, Supplementary protection certificate (SPC), Biosimilar medicinal product, Launch at risk.
Dhenne Avocats blog: UPC Appeals: What the Numbers Show, Pharmaceutical patents and the UPC: is the Court hostile to them?.
Publications by Matthieu Dhenne: The Launch Letter: How Generics and Biosimilars Should Write to Avoid UPC Urgency (Kluwer Patent Blog).
Source and translations
- Official source
- Unified Patent Court registry link recorded in the record
- Original language
- not recorded
- Translation available
- no translation recorded the firm’s French record is a summary, not a translation
- Date checked
- not recorded
Follow this case
Proceedings, related decisions, appeals, parties and patents as recorded in the registry and in the Dhenne Avocats corpus. Each link states its source.
Proceedings
Parties
- defendantSamsung Bioepis NL B.V.6 decisions in the corpusFollow this party
- claimantAlexion Pharmaceuticals, Inc.11 decisions in the corpusFollow this party
Decisions in the same proceedings and documented appeals
What the record states
- Nature of the act
- Appeal RoP220.1
- Outcome (Dhenne Avocats summary)
- La cour d’appel refuse de corriger par interprétation la SEQ ID NO: 4 de la revendication 2, faute de certitude sur l’erreur et sur sa correction, ainsi lue, la revendication encourt vraisemblablement la nullité pour insuffisance, et le refus des mesures provisoires est confirmé.
- Appeal
- Decision of the Court of Appeal.
- Instance
- Court of Appeal decision.
Patents mentioned
EP 3 167 888mentioned in: Dhenne Avocats analysis Follow this patent
Related decisions cited in the analyses
- NanoString Technologies v 10x Genomics (CoA, 26 February 2024) cited in this record
- Dyson Technology v Dreame International (Hongkong) (CFI, 7 April 2026) cites this decision
- BFexaQC v NVIDIA (CFI, UPC_CFI_180/2025, 11 March 2026) cites this decision
- Alexion Pharmaceuticals v Samsung Bioepis (CFI, 1 August 2025) cites this decision
- Alexion Pharmaceuticals v Samsung Bioepis (CoA, 19 June 2025) cites this decision
- Dyson Technology v Dreame International (Hongkong) (CFI, 14 August 2025) cites this decision
Patents and standards
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