Messerle v Sabert Corporation Europe (CFI, 19 February 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In a decision of 19 February 2026, given in the joined infringement action and counterclaim for revocation (UPC_CFI_26/2025 and UPC_CFI_375/2025), the Vienna Local Division dismissed both Messerle’s action and Sabert Corporation Europe’s counterclaim concerning EP 3 705 415 B1, which relates to a package, in particular for food products. The patent was held novel and inventive, but the Tray2Go tray infringes neither literally nor by equivalence. The decision is notable for excluding late-filed prior use evidence, for treating a commercial brochure as a stand-alone prior art document and for the primacy of the German text of the claims.

Facts and procedure

Messerle brought its action on 14 January 2025 and amended it in March 2025, Sabert filed its defence and counterclaim on 25 April 2025, alleging lack of novelty and inventive step (paragraph 18). Messerle withdrew its requests against the Deli2Go product (paragraph 15), leaving only Tray2Go in issue (paragraph 13). Its seven auxiliary requests were not examined, the patent being held valid (paragraph 24). The hearing took place on 14 January 2026, in English, although the patent was granted in German (paragraph 27).

The applicable law

Validity is assessed under Arts 54 and 56 EPC and Art. 65 UPCA, infringement under Art. 25 UPCA. The German text is authentic under Art. 70(1) EPC. On inventive step, the division followed the Court of Appeal’s approach in Meril v Edwards and Amgen v Sanofi (paragraph 73).

Question

Is the patent novel and inventive over a commercial brochure and an alleged prior use, and does the Tray2Go tray reproduce the features of claim 1, in particular the bonding of the adhesive portion to the wall?

Decision

On construction, the German term « Knick » denotes a sharp crease or angle, not a rounded bend (paragraphs 29 to 35), and the tray must have at least two distinct side walls each bearing retaining elements (paragraphs 36 and 37).

On validity, late-filed material on physical Solut! products was disregarded under Rule 9: it could have been gathered in about a month and supported a new attack rather than a response (paragraphs 41 to 48). The commercial brochure D4 is prior art but does not disclose features 6 and 8 on at least two side walls (paragraphs 50 to 68). Prior use was not proven, the lid design remaining uncertain and invoices appearing altered (paragraphs 70 to 72). The objective problem is easy handling, good stability and a good hold of the lid (paragraph 88), starting from D4, no pointer towards features 6 and 9 was shown, and D5, a baking mould without a lid, is not a realistic starting point (paragraphs 91 to 102).

On infringement, Tray2Go does not reproduce feature 8, the indirect connection theory being rejected and only the walls of the assembled tray being relevant (paragraphs 109 to 112). Equivalence failed because the function of the substituted means was not explained (paragraphs 114 to 119). The values in dispute were set at EUR 2,000,000 and EUR 3,000,000, each party bears the costs of the claim it lost, with a combined ceiling of EUR 600,000, so that each bears its own costs (paragraphs 120 to 122).

Key points for practice

• Prior art or prior use filed after the counterclaim must be justified. Otherwise it is disregarded under Rule 9 (paragraphs 41 to 48).
• A commercial brochure is assessed as a stand-alone document: later acquiring the advertised product does not establish what the brochure discloses.
• Equivalence requires the patentee to explain the function of the replaced means. Otherwise it fails (paragraphs 117 to 119).
• Practical point: where the patent was granted in German and the proceedings run in English, argument should start from the German text of the claims (paragraph 27).

Provisions applied

Agreement on a Unified Patent Court

Art. 25, Art. 65, Art. 69(1) and (2) and Art. 73(1)

Rules of Procedure

Rules 9, 23, 25.1, 118, 152.2, 220.1(a) and 224.1(a)

European Patent Convention

Arts 54, 56, 69, 70, 138

Case law cited

NanoString v President and Fellows of Harvard College, Munich Central Division, 17 October 2024, NJOY v Juul Labs, Paris Central Division, 5 November 2024 (UPC_CFI_315/2023), Paris Central Division, 5 November 2025 (UPC_CFI_309/2023), Meril v Edwards, Court of Appeal, 25 November 2025, Amgen v Sanofi, Court of Appeal, 25 November 2025, Ortovox v Mammut, Düsseldorf Local Division, 14 January 2025, Kaldewei v Bette, Düsseldorf Local Division, 3 July 2024, The Hague Local Division, 22 November 2024 (UPC_CFI_239/2023), Mannheim Local Division, 6 June 2025 (UPC_CFI_471/2023), Paris Local Division, 1 August 2025 (UPC_CFI_363/2024), Brussels Local Division, 17 January 2025

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.