CUP&CINO Kaffeesystem-Vertrieb v ALPINA COFFEE SYSTEMS (CFI, 13 September 2023)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 13 September 2023, pronounced orally at the hearing (UPC_CFI_182/2023, ACT_528738/2023), the Vienna Local Division dismissed CUP&CINO Kaffeesystem-Vertrieb’s application for provisional measures against ALPINA Coffee Systems based on EP 3 398 487, relating to the production of milk foam. It makes two points: an opt-out declared after an application for provisional measures has been filed is ineffective, since that application is an « action » within Art. 83(3) UPCA and Rules 5 and 5A RoP, and the claimed feature of a pipe section is construed in light of the description, which rules out literal infringement. The applicant must reimburse EUR 25,600 in costs.

Facts and procedure

The applicant targeted the ALPINA Latte Perfetto Duo milk frother and sought an injunction in Austria, Germany, Denmark, France, Italy, the Netherlands and Portugal ahead of the HOST trade fair in Milan in October 2023, together with a penalty of EUR 3,000 per infringement and per day and surrender of the devices. Its application, received on 27 June 2023, was followed on 6 July 2023 by an opt-out of the patent from the UPC’s exclusive jurisdiction and, on 24 August 2023, by a request to remove that opt-out, on the ground that the patent attorney who filed it had not been authorised to do so. The Registrar had yet to decide. The respondent disputed urgency, infringement, validity (added matter, inventive step) and jurisdiction.

The applicable law

The Division applied Art. 83(3) UPCA and Rules 5 and 5A RoP on opt-out, then Art. 69 EPC and its Protocol on Interpretation to the scope of claim 2. Costs fall under Art. 69 UPCA and Rule 211.1(d) RoP.

Question

Does an opt-out declared after an application for provisional measures has been filed deprive the UPC of jurisdiction, and does the contested device embody feature (i) of claim 2, which requires different internal diameters for the pipe upstream and for a pipe section downstream of the throttle?

Decision

The application for provisional measures remained admissible, but it rendered the opt-out of 6 July 2023 ineffective (Rule 5.6 RoP): it is an « action » within Rules 5 and 5A RoP and Art. 83(3) UPCA, as the English and French versions of the Rules and of Art. 32(1) UPCA show, since they also use that term for provisional measures. That reading matches the purpose of the mechanism, which prevents a pending case from being withdrawn from the Court, for instance to avoid an unfavourable outcome, and is consistent with Rule 265 RoP, under which withdrawal of an application for provisional measures requires the Court’s permission. The Vienna Division therefore remains competent, including for the main action. On the merits, the pipe section is construed by reference to the description, which describes it as 0.5 to 2 metres long, preferably about 1.5 metres, with a graduated pressure drop: a section of about 10 centimetres, made up of an elbow connector and a coupling part, does not qualify. As feature (i) was missing, there was no literal infringement. Urgency and validity were not considered. All requests were dismissed. Since the decision ends the first-instance proceedings, the applicant must reimburse the respondent’s costs, quantified at EUR 25,600 (the operative part says « provisionally », the reasons « definitively »).

Key points for practice

• Filing an application for provisional measures before the UPC bars a later opt-out of the patent, just as an action on the merits would.
• Numerical ranges in the description may narrow the meaning of a claim term, even a generic one.
• The costs of provisional measures proceedings are borne by the unsuccessful applicant where the decision closes the proceedings.
• Practical point: the opt-out decision must be taken before any UPC filing, including for interim relief, it can no longer be used afterwards to leave the Court.

Provisions applied

Agreement on a Unified Patent Court

Arts. 24(1)(c), 32(1), 62, 69, 73(2)(a) and 83(3) and (4), Statute, Art. 37(2)

Rules of Procedure

Rules 5, 5.6, 5.8, 5A, 150 et seq., 211.1(d), 220.1(c), 224.2(b) and 265

European Patent Convention

Art. 69(1) and Protocol on Interpretation

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.