VMR Products v NJOY Netherlands (CoA, 29 December 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

The Court of Appeal dismisses VMR Products LLC’s appeal against the decision of the Paris Central Division of 27 November 2024 (UPC_CFI_308/2023), which had revoked in its entirety, at the request of NJOY Netherlands B.V., EP 3 456 214 for a vaporizer. Claim 1 is held to lack inventive step, and neither the ten auxiliary requests nor dependent claims 2 to 14 save the patent. Beyond the facts, the decision clarifies how far a revocation claimant may file new evidence in reply within a front-loaded system.

Facts and procedure

EP 3 456 214, maintained in amended form after opposition before the EPO, was validated in Austria, Belgium, Finland, France, Germany, Italy and the Netherlands (paragraph 2). NJOY sought revocation for lack of inventive step. VMR Products defended the patent as granted and, in the alternative, applied to amend it. The Central Division revoked the patent and allowed none of the auxiliary requests (paragraph 8). On appeal, VMR Products sought reversal, maintenance of the patent as granted, on Auxiliary Requests I to X or on the basis of dependent claims, and objected to the English translation of the Lee prior art. The oral hearing took place on 3 November 2025 before a panel of five judges, two of them technically qualified.

The applicable law

The Defence to the Application to amend does not allow the claimant to raise new grounds of invalidity without leave (Rules 32.2, 43.3 and 263 RoP), so grounds and evidence directed at the patent as granted must be distinguished from those answering the amendments (paragraph 26). Parties must set out their full case early, new arguments being admissible in particular circumstances, subject to proportionality (paragraph 27). Fairness may allow a claimant to respond to the defence with new evidence, including on common general knowledge (paragraph 28). Claims are construed following NanoString v 10x Genomics (paragraph 39), and inventive step is assessed from a realistic starting point and the objective problem (paragraphs 67 to 74).

Question

Is claim 1, which requires a window in the cartomizer receiving segment, obvious over the Pan prior art and common general knowledge, and can the auxiliary requests or dependent claims save the patent?

Decision

The Court upholds the Central Division’s approach to the admissibility of late-filed documents (paragraphs 19 to 28), it rejects late translations of Lee and holds inadmissible on appeal the objection to translation MWE 11a, which would not have changed the outcome (paragraphs 13 to 18). Feature 1.8 is construed as a window of any shape and size, located anywhere on the receiving segment, through which part of the chamber can be seen from outside, and VMR’s reading that the window serves to check the electrical contacts is rejected (paragraphs 51 to 66). The objective problem is reformulated as providing a vaporizer that facilitates checking the status of the inserted cartomizer, with no synergy with the contacts (paragraphs 81 and 82). Pan (US 2010/0242974 A1), a realistic starting point, discloses every feature except the window (paragraphs 87 to 100), a routine means that is objectively appropriate in this context, as Lee illustrates (paragraphs 101 to 107). Auxiliary Requests I to VIII and X fail, their additional features being disclosed by Pan or amounting to obvious choices (paragraphs 108 to 126, 133 and 134), Auxiliary Request IX fails for lack of clarity and of support in the description (paragraph 132). Dependent claims 2 to 14 also fall (paragraphs 135 to 184). VMR Products bears NJOY’s reasonable and proportionate costs up to the applicable ceiling.

Key points for practice

• Fairness may allow a revocation claimant to file new evidence on common general knowledge in reply, provided it answers the defence and does not introduce a new ground (paragraphs 26 to 28).
• A general reference to first-instance submissions is not enough on appeal, unless the impugned decision failed to address them (paragraph 30).
• A broadly worded feature (“a window”) cannot be narrowed by the function the proprietor attributes to it where the claims and description do not support that function (paragraphs 51 to 66).
• Practical point: a proprietor should substantiate at first instance the technical contribution of each distinguishing feature, an alleged synergy without support in the patent will be disregarded (paragraphs 81 and 82).

Provisions applied

Rules of Procedure

Rules 32.2, 43.3, 44, 50.2, 105, 222.2 and 263

European Patent Convention

Art. 69, Art. 84, Art. 123(2) and (3)

Case law cited

OrthoApnea, Court of Appeal, 21 November 2024, UPC_CoA_456/2024, Abbott v Sibio, Court of Appeal, 14 February 2025, UPC_CoA_382/2024, NanoString v 10x Genomics, Court of Appeal, UPC_CoA_335/2023, Amgen v Sanofi and Regeneron, Court of Appeal, 25 November 2025, UPC_CoA_528/2024 and UPC_CoA_529/2024, Meril v Edwards, Court of Appeal, 25 November 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.