Fisher & Paykel Healthcare v Flexicare (Group) (CFI, 10 April 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In a decision of 10 April 2026 (UPC_CFI_480/2025), the Milan Central Division revokes in its entirety, for all UPC Contracting Member States, Flexicare’s unitary patent EP 4 185 356 on a nasal cannula, in a revocation action brought by Fisher & Paykel Healthcare. Claim 1 as granted and the first auxiliary request lack novelty over D2 (WO 2015/193833), and the later requests lack clarity. The decision matters for practice on two points: prior art destroys novelty if a single way of mapping its features onto the claim makes it anticipatory, and the court will not restructure dependent claims of its own motion.

Facts and procedure

The patent, filed on 23 July 2021 claiming UK priority of 24 July 2020, was granted on 28 August 2024 (paragraph 8). The revocation action was brought on 29 May 2025 (paragraph 1). Flexicare filed an application to amend with 13 auxiliary requests on 1 August 2025 (paragraphs 11 and 13), an order of 15 January 2026 refused to admit further requests (paragraphs 15 and 162). After the interim conference of 18 December 2025, the oral hearing took place in Milan on 27 February 2026 (paragraphs 3 and 4). The parties agreed a value of EUR 250,000 and a ceiling on recoverable costs of EUR 38,000 (paragraph 5).

The applicable law

The claim is construed under Art. 69 EPC and its Protocol. Novelty is assessed under Art. 54(1) and (2) EPC, the clarity of amendments under Art. 84 EPC and their allowability under Art. 123 EPC. Auxiliary requests are subject to Rules 30 and 50.2 RoP, Art. 76 UPCA confines the court to the parties’ requests.

Question

Is the claimed nasal cannula novel over D2 where D2’s components can be mapped onto the claim features in more than one way, and is any auxiliary request allowable?

Decision

The Division defines the skilled person (paragraph 37) and adopts a broad construction: the gas tube is not a mandatory part of the cannula, the manifold need not have a single inlet, an indirect connection suffices for the connector and the swivel connection is not limited to single-axis rotation, the embodiments not limiting the claims (paragraphs 42 to 70). It is not bound by the construction of the defendant’s expert (paragraph 63). If one way of mapping prior art components onto the features leads to anticipation, novelty is destroyed (paragraph 74): D2’s frame portion 102 corresponds to the manifold and component 114, although called a ‘manifold’ in D2, to the connector (paragraphs 85 to 103).

The first auxiliary request is admissible and clear but lacks novelty (paragraphs 106 to 140). The second and later requests, though admissible, are not allowable because added feature 1.7.2 lacks clarity under Art. 84 EPC (paragraphs 141 to 161). No implicit request to maintain the patent on the dependent claims is found: it is for the proprietor to restructure its claims, and it did not show their novelty (paragraphs 165 to 170). The patent is revoked, the application to amend dismissed and Flexicare ordered to bear the costs.

Key points for practice

• The terminology used in the prior art does not bind the court: a component called a ‘manifold’ in D2 may correspond to the claimed connector.
• A broad construction, adopted where the claim contains no limitation, widens the range of anticipating prior art.
• A feature added by amendment must meet the clarity requirement of Art. 84 EPC, failing which every request containing it falls.
• Practical point: a proprietor wishing to fall back on dependent claims must file express auxiliary requests and show their validity, since the court will not do so on its behalf.

Provisions applied

Agreement on a Unified Patent Court

Art. 69(1), 73(1) and 76

Rules of Procedure

Rules 30, 50.2, 118.8 and 220.1

European Patent Convention

Art. 54(1) and (2), Art. 69 and Protocol on its interpretation, Art. 84, Art. 123(2) and (3)

Case law cited

NanoString v 10x Genomics, Court of Appeal, 26 February 2024, Dyson v Dreame, Court of Appeal, 6 March 2026, Amgen v Sanofi, Court of Appeal, 25 November 2025, Mammut v Ortovox, Court of Appeal, 25 September 2024, Sinocare v A. Menarini Diagnostics, Court of Appeal, 30 March 2026, NanoString v Harvard, Munich Central Division, 17 October 2024, Brita v Aquashield, Munich Local Division, 22 August 2025, bioMérieux v Labrador, Milan Central Division, 23 October 2025, FUJIFILM v Kodak, Düsseldorf Local Division, 28 January 2025, Pari v Philips, Milan Central Division, 27 November 2025, UPM-Kymmene v International N&H Denmark, Munich Central Division, 24 February 2026, Microsoft v Suinno, Paris Central Division, 7 January 2026, Emporia v Seoul Viosys, Paris Central Division, 30 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.