UPM Kymmene v International N&H Denmark (CFI, 24 February 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In a decision of 24 February 2026 (UPC_CFI_829/2024), the Munich Central Division revoked in its entirety International N&H Denmark’s EP 2 611 800, which concerns a xylose-rich sugar composition, for Austria, Finland, France, Germany, the Netherlands and Sweden, at the request of UPM-Kymmene. The patent fell for added matter and, in addition, for lack of inventive step. The decision is of interest on three counts: the literal reading of numerical ranges in a composition claim, the refusal of late auxiliary requests and the requirement of an « inextricable link » for the inventiveness of an intermediate product.

Facts and procedure

The revocation action was filed on 20 December 2024 against Virdia Inc., for which International N&H Denmark was substituted by order of 28 February 2025 (paragraphs 1 and 2). The proprietor filed auxiliary requests, including requests 6a, 14a and 18a with its submissions of 19 June 2025, followed by narrowed original requests on 28 November 2025 (paragraphs 66 and 67). The value in dispute had been set at EUR 1,000,000 by order of 21 November 2025 (paragraph 91). The hearing took place on 15 January 2026 and the decision was read out in open court. A divisional patent, EP 3 540 068, is the subject of separate stayed proceedings (UPC_CFI_830/2024).

The applicable law

The action falls under Art. 65 UPCA and the grounds in Art. 138(1)(a) and (c) EPC, read with Arts 52 to 57 and 123(2) EPC. Claims are construed under Art. 69 EPC and its Protocol.

Question

Does claim 1, which states the marker molecule content without specifying the basis of calculation, extend beyond the application as filed, which calculated that content relative to total sugar concentration, and can an intermediate composition be inventive merely because of the process it serves?

Decision

On construction, the division treated the claim as a product claim not limited by process or use (paragraphs 32, 33 and 41). The word « comprising » combined with numerical ranges means that the listed components cannot fall outside their ranges (paragraph 33). Absent any different definition in the description, the marker molecule content is measured relative to the whole composition rather than to total sugar concentration (paragraph 55), the patentee is responsible for drafting claims that adequately define the subject matter (paragraph 56). The application as filed, however, only discloses amounts calculated relative to total sugar concentration: the amendment adds technically relevant information not derivable from the application, and the patent is invalid for added matter (paragraphs 60 to 64).

The original auxiliary requests failed on the same ground (paragraphs 66 and 73). Requests 6a, 14a and 18a were not admitted, as their late filing on a central issue was not justified (paragraphs 67 to 71), and the request under Art. 65(3) UPCA was rejected for failing to identify the claims to be maintained (paragraph 72).

On inventive step, the division noted that sugar compositions of this kind were known, in particular from WO 2010/046532, the objective problem is merely to provide another composition suitable for xylose crystallisation, and the differences are routine and arbitrary modifications (paragraphs 75 and 82). Absent an inextricable link between the composition and an inventive process, no inventive step can be acknowledged for the intermediate product (paragraphs 81 and 83), and the product-by-process requests also failed (paragraphs 84 to 86). Costs were awarded against the proprietor, subject to a ceiling of EUR 112,000 (paragraphs 90 and 91).

Key points for practice

• A content expressed as a percentage without a basis of calculation is read against the whole composition. The patentee bears the risk of imprecise drafting (paragraphs 55 and 56).
• An auxiliary request filed late on the central issue of the case will not be admitted without justification (paragraphs 69 to 71).
• Inventive step for an intermediate product requires an inextricable link with an inventive process, in line with the EPO case law cited (paragraph 83).
• Practical point: check, before grant and in defence, that the basis of calculation of claimed numerical ranges matches that of the application as filed.

Provisions applied

Agreement on a Unified Patent Court

Art. 32(1)(d), Art. 65, Art. 69(1), Art. 73(1), Art. 76(1), Art. 82 and Art. 83(3)

Rules of Procedure

Rules 17.3, 30.2, 42, 49.2, 50.2, 118.5, 118.8, 158.2, 220.1(a), 224.1(a), 354 and 355.4

European Patent Convention

Art. 33, 52, 56, 69, 123, 138, Protocol on the Interpretation of Article 69

Regulation (EU) No 1215/2012

Arts 24(4), 71a and 71b

Case law cited

NanoString v 10x Genomics, Court of Appeal, 26 February 2024, Insulet v EOFlow, Court of Appeal, 30 April 2025 (UPC_CoA_768/2024), Brita v Aquashield, Munich Local Division, 22 August 2025, Baussmann v Raimund Beck, Munich Central Division, 20 November 2025, NJOY v Juul, Paris Central Division, 5 November 2024 (UPC_CFI_309/2023), 10x Genomics v Curio, Düsseldorf Local Division, 15 June 2025 (UPC_CFI_140/2024), Sumi Agro v Syngenta, Court of Appeal, 3 March 2025 (UPC_CoA_523/2024), Abbott v Sibio, Court of Appeal, 14 February 2025, Alexion v Amgen, Court of Appeal, 20 December 2024, Amgen v Sanofi, Court of Appeal, 25 November 2025, Meril v Edwards, Court of Appeal, 25 November 2025, Microsoft v Suinno, Paris Central Division, 7 January 2026, Yellow Sphere v Knaus Tabbert, Düsseldorf Local Division, 10 April 2025 (UPC_CFI_50/2024)

Related decisions

• UPM-Kymmene v International N&H Denmark, 21 November 2025, earlier order setting the value in dispute, referred to in the decision (paragraph 91).

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.