Illumina v Element Biosciences (CFI, 16 October 2026)

Dhenne Avocats · 22 October 2026

Our analysis

Summary

By an order of 16 October 2026 following the interim conference (Rule 105.5 RoP), the judge-rapporteur of the Lisbon Local Division, in the dispute between Illumina, Inc. and Element Biosciences, Inc., Element Biosciences Netherlands B.V. and I.L.C. Instrumentos de Laboratório e Científicos Lda (UPC_CFI_1920/2025 and UPC_CFI_1060/2026, EP 3 714 978), set the value of the infringement action at EUR 8,000,000 and that of the counterclaim for revocation at EUR 12,000,000, and laid down the arrangements for the oral hearing to be held in Lisbon on 17 December 2026.

Question

What can the interim conference settle ahead of the oral hearing as regards the value of the dispute, the scope of the claim construction and validity debate, and the conduct of the hearing?

Decision

On the basis of the parties’ agreement, the judge-rapporteur set the value of the infringement action at EUR 8,000,000 and that of the counterclaim for revocation at EUR 12,000,000, giving EUR 20,000,000 for the proceedings as a whole and a ceiling for recoverable costs of EUR 1,200,000 (paras 6 to 8). The claim construction debate is confined to features 1.4.2 and 1.4.7.2, whose reading also determines literal infringement (para 12). Seven validity attacks will be argued, and the admissibility of a new added matter attack raised in the Defendants’ Reply is left to the panel (paras 13 and 14). The number of auxiliary requests, 23 in total, was not considered unreasonable given their structure (para 16). The Claimant must clarify its allegations of direct and indirect infringement within two weeks, with an equal period for the Defendants to respond (para 17 and operative part). The order also sets a timed agenda for the hearing and deadlines for filing presentations and lists of attendees (paras 19 to 25 and operative part).

Key points for practice

• The judge-rapporteur asked the Defendants whether they would make their counterclaim for revocation conditional upon a finding of infringement, and they agreed to consider it (para 11).
• Since the auxiliary requests are built around three features (location sensor, fluidic device, support beams), the parties will argue feature by feature rather than request by request (para 16).

Provisions applied

Rules of Procedure

Rules 104, 105, 105.5 and 106 RoP

Related decisions

• Illumina v Element Biosciences, Lisbon Local Division, 22 June 2026, order which had fixed the interim conference for 16 October 2026 and the oral hearing for 17 December 2026.
• Illumina v Element Biosciences, Lisbon Local Division, 1 April 2026, earlier order admitting a corrected Statement of claim in the same action.

Prepared by Dhenne Avocats from the official decision, consulted on 22 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.