EDWARDS LIFESCIENCES v MERIL LIFE SCIENCES (CFI, 10 December 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In an order of 10 December 2024 following the interim conference (UPC_CFI_380/2023), the judge-rapporteur of the Nordic-Baltic Regional Division managed the infringement action on unitary patent EP 3 769 722 brought by Edwards Lifesciences against Meril Life Sciences and five other companies, and the six counterclaims for revocation. He kept the oral hearing of 16 January 2025 despite the EPO opposition hearing set for the following day, excluded the late inventive step attacks based on the RetroFlex product and on documents HL-CC 9 to HL-CC 13, but admitted the patentee’s auxiliary requests, its equivalence arguments and the defendants’ new position on claim 2.

Question

Which arguments and documents filed during the written procedure are admissible, and should the hearing be postponed until after the Opposition Division’s decision?

Decision

The hearing was kept, since postponement would cause further delay, but the parties will have to inform the Division of the outcome of the opposition, the aim of avoiding conflicting UPC and EPO decisions being noted. Following the Paris Central Division, attacks that could have been included in the counterclaim are admissible only in response to the defence or the application to amend: RetroFlex was excluded as a starting point, but may still be used to show common general knowledge. The auxiliary requests were admitted: convergence is not required, although it may bear on whether their number is reasonable under Rule 30.1(c). The equivalence argument is not an amendment of the case under Rule 263, in line with the Court of Appeal’s order of 21 November 2024. Requests for a court expert and for party experts to be heard in person were rejected.

Key points for practice

• A product excluded as a starting point for inventive step may still be relied on to establish the skilled person’s common general knowledge.
• Non-convergent auxiliary requests remain admissible if their number is reasonable in light of the attacks.

Provisions applied

Agreement on a Unified Patent Court

Arts 33(3)(a) and 53

Rules of Procedure

Rules 9.2, 13, 24(g), 25(g), 30.1(c), 113.2, 176, 177.1, 191, 263 and 333.1, recital 7 of the preamble

European Patent Convention

Art. 138(1)(c)

Case law cited

BITZER Electronics v Carrier, Paris Central Division, 5 April 2024 and 29 July 2024, Court of Appeal, 18 September 2024, CoA_265/2024, Court of Appeal, 21 November 2024, UPC_CoA_456/2024

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.