JingAo Solar v Chint New Energy (CFI, 28 November 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In a decision of 28 November 2025, made in proceedings UPC_CFI_425/2024 and UPC_CFI_751/2024, the Munich Local Division held EP 2 787 541 (solar cell with a tunnelling layer, TOPCon technology) valid and infringed by the Chint/Astronergy group’s ASTRO N modules in Germany, France, Italy and the Netherlands. The counterclaim for revocation was dismissed in its entirety.

The decision is of interest for its handling of inventive step attacks: several prior art combinations were excluded as late-filed under Rule 263, and the competition law defence failed for want of reliable market data.

Facts and procedure

The patent, filed by LG Electronics in 2014 and granted in 2022, was assigned to Jinko and then to the claimant. EPO opposition proceedings ended with the patent maintained with an amended claim 13, an appeal is pending. JingAo Solar sued six group companies, which counterclaimed for revocation. An order of 19 March 2025 held that the competition law allegations were not substantiated, and an order of 31 March 2025 allowed the amendment of the claims and of the infringement action. The oral hearing took place on 28 October 2025.

The applicable law

Validity was assessed under Art. 54, 56, 123(2) and 138(1)(c) EPC. Inventive step followed the problem and solution approach as framed by the Court of Appeal in its decisions of 25 November 2025 (Amgen v Sanofi, Edwards v Meril). The ancillary remedies rest on Art. 63 and 69 UPCA and Rules 118 and 354.

Question

Does the patent survive the added matter, sufficiency, novelty and inventive step attacks, and do the defendants’ TOPCon modules fall within claim 1?

Decision

On construction, pinholes do not prevent the tunnelling layer from being « entirely formed », and « directly connected » excludes any intermediate material between electrode and doped area (section IV). Neither added matter nor insufficiency was found (sections V.1 and V.2). Claim 1 is novel over D20, whose « transition region » lies within the substrate (section V.3).

On inventive step (section V.4), the combinations D28 with D33, D28 with D31, D8 alone, D8 with common general knowledge and D6 with D28 were not admitted as late-filed, D33 having been known to the defendants. The other attacks failed: D22 teaches away from the claimed position of the tunnelling layer, no motivation was shown for D25, and the skilled person starting from D7 would not consult D26, a back-junction cell.

Infringement was established from the defendants’ own white paper and test reports (section VII). The « de facto standard » defence was rejected, the market share relied on being only a forecast (section VIII), and the proportionality objection, a blanket assertion, failed (section IX). The order grants an injunction with penalties of up to EUR 20,000 per product, information from 31 August 2022, recall and destruction, damages and interim costs of EUR 124,000. Publication, a grace period, security of EUR 10 million and confidentiality were refused.

Key points for practice

• The division excluded late-filed prior art combinations under Rule 263, including where the document was already known to the party relying on it (section V.4).
• A defence under Art. 102 TFEU requires actual market data. A market share forecast is not enough (section VIII).
• A proportionality objection under Art. 63(1) UPCA needs concrete argument (section IX).
• Practical point: every prior art combination should be pleaded at the counterclaim stage, or it may not be examined at all.

Provisions applied

Agreement on a Unified Patent Court

Art. 63, 65(5) and 69(1)

Rules of Procedure

Rules 13.1, 118, 263 and 354

European Patent Convention

Art. 54, 56, 123 and 138

Case law cited

Amgen v Sanofi-Aventis Deutschland, Court of Appeal, 25 November 2025, Meril v Edwards, Court of Appeal, 25 November 2025, Abbott Diabetes Care v Sibio, Court of Appeal, 14 February 2025

Related decisions

• Chint Solar Netherlands, 19 March 2025, order on the competition law allegations.
• JingAo Solar, 31 March 2025, order allowing amendment of the claims.

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.