SES-imagotag v Hanshow (CoA, 13 May 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By decision of 13 May 2024 (UPC_CoA_1/2024, APL_8/2024), the Court of Appeal dismissed the appeal of VusionGroup (formerly SES-imagotag) against the Munich Local Division’s order of 20 December 2023 refusing provisional measures against four Hanshow group companies based on the unitary patent EP 3 883 277, which concerns electronic shelf labels with an NFC or RFID antenna.

The decision matters for practice because of the rule of construction stated in its headnote: a claim feature must always be interpreted in light of the claim as a whole. It also confirms that the judge hearing an application for provisional measures must consider infringement at least more likely than not.

Facts and procedure

The applicant sought an injunction in the seventeen UPC Member States, with a penalty of EUR 250,000, alleging literal infringement of claims 1 and 3 by the Nebular and Stellar product ranges. The Munich Local Division dismissed the application for want of sufficient certainty as to infringement: since the antenna of the accused labels lies largely behind the screen, feature 8.4 was not met. On appeal, the applicant argued that the first-instance judge had misconstrued features 7 and 8.4 and had wrongly relied on the prosecution history. The respondents also maintained their invalidity arguments (added matter, novelty, inventive step). The hearing took place on 27 March 2024 before the first panel, presided over by Judge Grabinski.

The applicable law

The Court applied Art. 62(4) UPCA and Rule 211.2 RoP, together with Art. 69 EPC and its Protocol. It followed the principles of construction in 10x Genomics and Harvard v NanoString: the claim is the starting point, the description and drawings are always consulted, construction is from the skilled person’s perspective and the same principles apply to infringement and validity (paragraph 26).

Question

Is feature 8.4, which requires the antenna to be arranged on or in the housing on the side of the front face of the label, met where the antenna lies behind the screen, level with the printed circuit board?

Decision

Feature 8.4 must be read together with features 7 and 8.3: the chip, housed on the rear side, and the antenna must not be located at the same place in the housing, and the antenna must be closer to the front face than the printed circuit board, which rules out a coplanar arrangement (paragraphs 29 to 31). The front face corresponds to the plane of the display, and the antenna must not lie behind it (paragraph 32). The Court rejected the reading that it is enough for the antenna not to lie behind the circuit board, a side-by-side arrangement being contrary to the description and exposed to the detuning effect caused by metal boards (paragraphs 33 and 34). This construction rests on the claim wording read in light of the description and drawings, without recourse to the prosecution history, whose use remains an open question (paragraph 37).

In all the accused products the antenna lies behind the screen. For the Nebular 350, the flexible circuit carrying the antenna is level with the circuit board, and the photographs, samples and arguments based on recesses and the battery do not show otherwise (paragraphs 39 to 43). Claim 3, a dependent claim, is not infringed either (paragraph 44). The appeal is dismissed and the appellant bears the costs of the appeal (paragraphs 46 and 47).

Key points for practice

• A claim feature cannot be read in isolation: its scope follows from how it fits with the other features of the claim.
• The standard of proof for provisional measures remains demanding: infringement must be at least more likely than not.
• The Court of Appeal left open whether the prosecution history may be used to construe the patent.
• Practical point: before seeking provisional measures, a patentee should check each feature against the overall structure of the claim rather than its wording alone.

Provisions applied

Agreement on a Unified Patent Court

Art. 62(4)

Rules of Procedure

Rule 211.2

European Patent Convention

Arts 52 to 57, 64, 69 and the Protocol on the Interpretation of Article 69

Case law cited

10x Genomics and Harvard v NanoString, Court of Appeal, 26 February 2024 (UPC_CoA_335/2023, App_576355/2023)

Related decisions

• SES-imagotag v Hanshow, 20 December 2023, Munich Local Division order refusing provisional measures, upheld on appeal.

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.