OXFORD NANOPORE v MGI TECH (CFI, 17 September 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 15 September 2026 (UPC_CFI_2307/2026), the Munich Local Division granted Oxford Nanopore Technologies’ application for provisional measures against MGI TECH GmbH, based on EP 2 422 198 and EP 2 715 343 and directed at the Cyclone sequencing platform (CycloneSEQ and G100-ER/G400-ER devices, flow cells and reagents). The panel found validity and infringement more likely than not, attributed to the German respondent the acts of three Chinese group companies on the basis of a common design, extended the measures to the United Kingdom, Switzerland, Liechtenstein and Ireland, and held that no security for enforcement was warranted (paragraph 81). The order is of interest for its combination of long-arm jurisdiction and intra-group attribution in interim proceedings.

Facts and procedure

On 26 June 2026 Oxford Nanopore applied, without an ex parte request, for provisional measures against four companies: MGI TECH GmbH (Berlin), MGI TECH CO., LIMITED, BGI HANGZHOU CYCLONESEQ TECHNOLOGY CO., LTD and SHENZHEN BGI GENOMICS CO., LTD. On 30 June 2026 the judge-rapporteur asked the applicant to address claim construction, the law applicable to the non-UPC territories and its infringement mapping. MGI TECH GmbH’s request for an extension of time was rejected. The oral hearing took place on 19 August 2026. Service on the three Chinese companies was not effected. Oxford Nanopore withdrew the application in respect of EP 2 964 779 and EP 3 097 210 and of claim 13 of EP 2 715 343, claims 1 and 7 of EP 2 422 198 and claim 1 of EP 2 715 343 remained in issue (paragraph 25).

The applicable law

The application is governed by Rule 206 RoP. The division assesses whether validity and infringement are more likely than not, whether the application was brought without undue delay, and whether the measures are necessary and proportionate. In the absence of any technical rebuttal, it applied Rule 171.2 RoP, under which an uncontested fact is held to be true as between the parties (paragraphs 139 to 142).

Question

Are the conditions for provisional measures met against the German subsidiary of a group whose Chinese parent companies have not been served, and may the measures extend to territories outside the UPC?

Decision

The proceedings against respondents 2 to 4 were separated. The application was admissible, having been brought without undue delay, and well founded against MGI TECH GmbH, including for Switzerland, Ireland, Liechtenstein and the United Kingdom (paragraph 81). On the validity of EP 2 422 198, MGI’s prior art combinations (Bennati, Tyvoll, Osman, common general knowledge) rested on hindsight: nothing pointed the skilled person to the claimed combination, since the selection described in those documents served other purposes (paragraphs 114 to 138). EP 2 715 343 was also held more likely valid than not: the negative proviso (« not coupled to the membrane via the detector ») is read functionally, as excluding a deliberate or functionally relevant coupling to the detector, not incidental contact, Gershow, Yusko and Turner do not disclose the claimed subject matter, Turner even teaching away, and insufficiency was rejected (paragraphs 151 to 170). Infringement of claims 1 and 7 by the Cyclone platform was more likely than not, MGI having offered no technical rebuttal of the evidence filed (paragraphs 139 to 142). For EP 2 715 343, MGI could not contest with ignorance: an importer, like a manufacturer, must monitor patents, and for a negative fact it bears a secondary burden of offering a plausible explanation of coupling to the detector, the hydrophobic anchor in the sequencing kit binds to the membrane, so infringement is more likely than not (paragraphs 171 to 180). The panel further found direct infringement by MGI TECH GmbH, attribution to it of the group companies’ acts by reason of a common design, at least an imminent threat of infringement, and that the measures were needed to freeze a one-player market and ward off price erosion (paragraph 81). MGI TECH GmbH imported and stored a G100-ER device in Berlin and hosts the group’s European demonstration centre. The acts of the other group companies (exclusive distributor, manufacturer, sequencing service provider) are attributed to it by reason of a common design, given the links in personnel, ownership and control (paragraphs 181 to 190). Time ran from 19 May 2026, when Oxford learned of a LinkedIn post offering the service in Europe. The proprietor has no duty to monitor the market, and the time spent preparing the application, including on Chinese decrees, was not undue delay (paragraphs 191 to 194). Irreparable harm is not required: direct competition in a single-supplier market and a 50% discount suffice, and MGI can revert to non-infringing activity (paragraphs 195 to 201). The injunction covers all forms of use, including under the « prolonged workbench » theory linking devices and flow cells, and extends to devices with the same technology under other names (paragraphs 202 to 206). It comes with delivery up of devices and flow cells to a bailiff and information within two weeks, backed by penalties of up to EUR 70,000 per product, EUR 20,000 per day and EUR 400,000 per day for delivery up and information (paragraphs 207 to 211). For the non-UPC territories, jurisdiction was not disputed, validity was assessed under the EPC and the applicant set out the foreign law on infringement, including the UK Supreme Court’s Fish & Fish judgment. The lack of regulatory approvals did not remove the threat (paragraphs 212 to 221). No security was required, MGI having shown no risk of Oxford’s insolvency or of non-enforcement in the UK (paragraphs 222 and 223). The value was set at EUR 4 million (EUR 2 million for the separated case). MGI bears 50% of court fees and 60% of representation costs, on the basis of an agreed reimbursement of EUR 100,000, the time for bringing the main action runs from provision of the information, and the panel recommended recourse to the Patent Mediation and Arbitration Centre (paragraphs 224 to 235).

Key points for practice

• Failure to serve group companies established outside the EU does not prevent measures against the European subsidiary, to which the group’s acts may be attributed on the basis of a common design.
• An application may cover non-UPC territories (United Kingdom, Switzerland, Liechtenstein, Ireland). The judge-rapporteur then requires the applicant to explain the applicable foreign law.
• Disputing infringement without a technical rebuttal invites the application of Rule 171.2 RoP, an importer cannot plead ignorance, especially against a negative claim feature (paragraphs 176 to 179).
• Practical point: withdrawing the weaker patents and claims in the course of the proceedings, as the applicant did here, keeps the debate on the strongest rights.

Provisions applied

Agreement on a Unified Patent Court

Arts 25, 26, 34, 62, 63 and 67

Rules of Procedure

Rules 9.3(a), 171.2, 191, 206, 209.1(a), 211.1, 211.4, 211.5, 213, 275, 303.2, 303.3 and 354.3

European Patent Convention

Art. 83

Case law cited

Kodak v Fujifilm, Court of Appeal, 2 June 2026, Belkin v Philips, Court of Appeal, 3 October 2025, Novartis and Genentech v Celltrion, Düsseldorf Local Division, 6 September 2024 (UPC_CFI_165/2024 and UPC_CFI_166/2024), Abbott v Sinocare, Court of Appeal, 17 April 2026, Guardant Health v Sophia Genetics, Court of Appeal, 2 July 2026, Align v Angelalign, Court of Appeal, 8 July 2026, Abbott v Sibio, Court of Appeal, 14 February 2025 (UPC_CoA_382/2024), Hologic v Siemens, Düsseldorf Local Division, 21 May 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.