bioMérieux UK v Labrador Diagnostics (CFI, 23 October 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By decision of 23 October 2025 (UPC_CFI_497/2024, revocation action, and UPC_CFI_571/2024, revocation counterclaim), the Milan Central Division ruled on the validity of Labrador Diagnostics’ EP 3 756 767, concerning modular point-of-care devices, challenged by bioMérieux UK and several bioMérieux group companies. The patent is maintained in the form of claims 1 and 2 of the third auxiliary request, and bioMérieux bears two thirds of Labrador’s costs, EUR 400,000. Its main contribution is procedural: faced with some fifty attacks, the division examined only those the claimant ranked as most promising and drew the consequences for the rest.

Facts and procedure

The revocation action was filed on 30 August 2024, the counterclaim, lodged on 30 September 2024 before the Düsseldorf Local Division, was referred to the Central Division. An opposition was filed at the EPO on 31 January 2025. bioMérieux raised some 50 attacks, including more than 12 for added matter, 3 for lack of novelty and 30 for lack of inventive step from 6 starting points (paragraph 1.2). Asked to rank them, it identified those it would pursue at the oral hearing (paragraph 1.3), held on 12 September 2025. Labrador no longer defended claims 1 to 8, 10 to 13 and 15 to 17 as granted (paragraph 1.1). The parties agreed a value of EUR 5 million and reasonable costs of EUR 600,000.

The applicable law

The division applied Art. 138(1) EPC and Art. 54, 56, 84 and 123 EPC, together with Rules 44 and 104 RoP and the principles of proportionality and speed in the Preamble. It distinguished the grounds for revocation under Art. 138 EPC, which the claimant must state (Rule 44(e) RoP), from attacks, which are pleadings combining facts, evidence and legal argument (paragraph 1.8).

Question

Must the division examine every attack where there are too many to be manageable, and does the patent survive under any auxiliary request?

Decision

The judge-rapporteur may ask the parties to limit or order their attacks (Rule 104 RoP), it is not for the court, bound to impartiality, to point to the most promising ones, but it may ask the party to rank them and treat the others as failing if the most promising do (paragraphs 1.7, 1.9 and 1.10). On the merits, the main request and first auxiliary request lack novelty over Clark. The second, while novel, adds matter beyond the parent application (paragraphs 1.4 and 1.5). The third is novel over Clark and the VIDAS® instrument (paragraph 1.6). It is not obvious starting from Clark with Coassin, as the skilled person would be led to use a single pipette tip rather than the two claimed (paragraphs 12.5 to 12.12), nor from VIDAS® with common general knowledge, since automating the manual pipetting step does not supply the missing first tip (paragraph 13.2), nor from Tsuruta with Tominaga, which would require non-routine adaptations (paragraphs 14.4 to 14.13), it is sufficiently disclosed (paragraphs 15.1 to 15.4). A late added matter attack is inadmissible (paragraphs 8.7 to 8.11). The patent is maintained in the form of claims 1 and 2 of the third auxiliary request (paragraphs 16.1 and 16.2). On costs, since the revocation action and the counterclaim involve the same parties and the same attacks on one patent, their combined value was set at EUR 5 million and a single ceiling of EUR 600,000 applies, under Article 1.3 of the Administrative Committee’s decision on the scale of ceilings (paragraph 17.5). The division refused to keep the agreed costs figure confidential, as it says nothing about the company’s financial capacity or strategy (paragraph 17.8). Labrador being the more successful party, but the patent as granted and the first three requests failing, bioMérieux bears two thirds of its costs, EUR 400,000 (paragraph 17.9). The operative part rejects the action and counterclaim in the sense that the patent is maintained as amended by the third auxiliary request, sets the value and ceiling, orders bioMérieux to pay EUR 400,000 and dismisses the confidentiality request. The panel was presided over by Judge Postiglione, with Judge Knijff as judge-rapporteur.

Key points for practice

• A revocation claimant who multiplies attacks must rank them: those it does not identify as most promising will not be examined on the merits.
• The court does not choose the attacks itself, to preserve its impartiality. The burden of selection lies with the party.
• An amount of costs agreed between the parties is not, as such, confidential information. A joined revocation action and counterclaim against the same patent, between the same parties, fall under a single ceiling of recoverable costs.
• Practical point: at the close of the written procedure, prepare a reasoned ranking of the attacks for the interim conference.

Provisions applied

Agreement on a Unified Patent Court

Art. 58, 65 and 69

Rules of Procedure

Rules 30.1, 44, 104, 118.5, 262.2, 263 and 370.6

European Patent Convention

Art. 54, Art. 56, Art. 69, Art. 83, Art. 84, Art. 123(2) and (3), Art. 138(1)

Case law cited

NanoString v 10x Genomics, 26 February 2024 (Court of Appeal, UPC_CoA_335/2023), VusionGroup v Hanshow, 13 May 2024 (Court of Appeal, UPC_CoA_1/2024), Mammut v Ortovox, Court of Appeal, 25 September 2024 (UPC_CoA_182/2024), Fujifilm v Kodak (UPC_CFI_355/2023), Milan Central Division, 8 July 2025 (UPC_CFI_513/2024), The Hague Local Division, 19 June 2024 (UPC_CFI_131/2024), Düsseldorf Local Division, 13 May 2025 (UPC_CFI_505/2023, reference as cited), Milan Central Division, 5 June 2025 (UPC_CFI_477/2025)

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.