Inficon v Elitech Technology (CFI, UPC_CFI_137/2025, 6 October 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By decision of 6 October 2026 in the joined proceedings UPC_CFI_137/2025 (infringement) and UPC_CFI_512/2025 (counterclaim for revocation), the Düsseldorf Local Division dismissed both Inficon’s infringement action against Elitech Technology and Elitech UK, directed at the METRUM sniffing leak detector, and the counterclaim for revocation of EP 3 567 356. Claim 1 was held valid but not infringed: the feature of a buffer chamber permitting homogeneous mixing of gases was missing. The main contribution concerns evidence: where the claimant’s own measurements are unconvincing from the outset, the defendant need not contest them specifically within the meaning of Rule 171(2) RoP, nor produce measurements of its own.

Facts and procedure

The patent relates to a sniffing leak detector including a reference gas inlet remote from the probe, a reference gas conduit and a buffer chamber whose volume permits homogeneous mixing of drawn-in reference gas with remaining gas (feature 5). Inficon targeted the METRUM and any Elitech detector with the same features in Germany, France and Italy. Elitech relied on added matter, lack of novelty and lack of inventive step. The opt-out had been withdrawn on 13 February 2025; since no preliminary objection was lodged, jurisdiction was accepted (paragraphs 60 and 61).

The applicable law

The division construed the claim under Article 69 EPC and its Protocol, and assessed validity under Articles 54, 56 and 123(2) EPC, applicable through Article 65 UPCA. The extent to which facts must be contested is governed by Rule 171(2) RoP.

Question

Is claim 1 valid, and does the attacked device include a buffer chamber permitting homogeneous mixing, where the claimant relies solely on its own measurements?

Decision

A buffer chamber is a physical enclosure of sufficient volume located in the reference gas conduit; it need not be a component separate from the housing (paragraphs 101 to 112). Homogeneous mixing means a sufficiently uniform mixture that smooths out short-term fluctuations, not perfect mixing (paragraphs 102, 107 and 118). There was no added matter (paragraphs 124 to 144); prior art CC1 and CC2 disclose no buffer chamber (paragraphs 148 to 161); starting from CC3, a realistic starting point cited in the patent, the skilled person had no motivation to combine the documents relied on (paragraphs 172 to 187). The auxiliary requests and dependent claims were not examined (paragraphs 121 and 188). On infringement, even accepting in Inficon’s favour that the housing slits are reference gas inlets, its measurements (Exhibits TW 7 and TW 11) show a delay effect, not homogeneous mixing (paragraphs 194 to 205); the defendants’ failure to provide their own measurements was irrelevant (paragraph 206). Each side bears the costs of the claim it lost, the ceiling for recoverable representation costs was set at EUR 400,000 for both claims, the request for an interim award of costs was rejected (paragraphs 207 to 212), and the value in dispute was set at EUR 1,000,000 for the infringement action and EUR 1,500,000 for the counterclaim.

Key points for practice

• A functional feature (« permitting homogeneous mixing ») must be proven by measurements showing the claimed effect, not a neighbouring effect such as mere delay.
• Faced with inconclusive measurements, a defendant may refrain from counter-measurements without facts being deemed admitted under Rule 171(2) RoP.
• Where each party loses its own claim, there is no single successful party for an interim award of costs (paragraph 211).
• Practical point: before suing on a functional feature, a patentee should make sure its tests isolate the claimed effect from other possible causes.

Provisions applied

Agreement on a Unified Patent Court

Arts 31, 32(1)(a), 33(1)(a) and (3), 54, 65(1) and 80

Rules of Procedure

Rules 13.1(l), 19.1, 19.7, 25.1, 30, 44, 110, 118.8, 119, 150.2, 171(2) and 352.1

European Patent Convention

Art. 54, 56, 69, 123 and 138

Case law cited

Court of Appeal: NanoString v 10x Genomics, 26 February 2024 (UPC_CoA_335/2023); VusionGroup v Hanshow, 13 May 2024 (UPC_CoA_1/2024); Ortovox v Mammut, 25 September 2024 (UPC_CoA_182/2024); UPC_CoA_382/2024, 14 February 2025; Insulet v EOFlow, 30 April 2025 (UPC_CoA_768/2024); Alexion v Amgen, 19 June 2025 (UPC_CoA_405/2024); Seoul Viosys v Expert e-Commerce, 5 November 2025 (UPC_CoA_762/2024 and UPC_CoA_773/2024); OTEC v STEROS, 7 November 2025 (UPC_CoA_579/2025); Amgen v Sanofi, 25 November 2025 (UPC_CoA_528/2024); Meril v Edwards, 25 November 2025 (UPC_CoA_464/2024); Rematec v Europe Forestry, 17 February 2026 (UPC_CoA_302/2025); Fujifilm v Kodak, 13 July 2026 (UPC_CoA_473/2025). First instance: Fujifilm v Kodak, Düsseldorf Local Division, 28 January 2025; Network System Technologies v Qualcomm, Munich Local Division, 11 March 2026; SharkNinja v SEB, Paris Local Division, 10 April 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.