Winnow Solutions v Orbisk (CFI, 13 August 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By decision of 13 August 2025 (UPC_CFI_327/2024, ACT_36388/2024 and CC_53523/2024), The Hague Local Division (Presiding Judge Brinkman as judge rapporteur, Judges Rinkinen and Kokke and Technical Judge Sanchini) dismissed Winnow Solutions’ infringement action against Orbisk and, on the counterclaim, revoked EP 3 198 245 (food waste monitoring) as granted while maintaining it in the form of Conditional Request 3. As Winnow never alleged that the Orbi system fell within that version, the infringement case failed. The main interest lies in costs: a patentee whose patent survives only in a form not asserted against the defendant generally bears the costs of the counterclaim, subject here to a 15% reduction because Orbisk also attacked the version that was upheld.

Facts and procedure

The patent, granted on 9 December 2020 and in force in France, Germany, the Netherlands and Italy, protects a system for weighing kitchen waste with on-screen categorisation and processor-based « cleaning » of erroneous weights. Winnow asserted claims 1 to 5, 11, 12 and 15 against the Orbi system, which combines a camera, image recognition and a scale (paragraphs 8 to 10). Orbisk counterclaimed for revocation (added matter, novelty, inventive step, priority) and filed an application under Rule 190 RoP concerning alleged public prior use. Winnow filed an amended Main Request and Conditional Requests 1, 2/2A and 3/3A to 3C (paragraphs 14 to 18). The interim conference took place on 28 May 2025 and the oral hearing on 18 June 2025.

The applicable law

Jurisdiction rests on Art. 33(1)(b) UPCA (paragraph 21). The division applied the principles of claim interpretation set out by the Court of Appeal in NanoString v 10x Genomics, with a reference to decision G 1/24 of the EPO Enlarged Board of Appeal (paragraph 28), then Arts. 56, 83 and 87 EPC. Costs fall under Art. 69 UPCA and Rule 118 RoP.

Question

Is the patent valid in any of the proposed forms and, if only a version not asserted against the defendant survives, how should the costs of the counterclaim be apportioned?

Decision

Feature 1.5 (« cleaning ») covers any cleaning of data relating to weights or categories (paragraph 31). Winnow having conceded priority, the relevant date is 21 April 2015 (paragraph 34). The Winnow video posted online in 2014 is the closest prior art, assessed on what it publicly shows, so the alleged prior use need not be examined (paragraphs 36 and 37). Error cleaning by drift correction or outlier exclusion is common general knowledge: the Main Request and Conditional Request 1 lack inventive step (paragraphs 38 to 46). Requests 2 and 2A add matter beyond the application, which addressed only bin changes, and are insufficiently disclosed (paragraph 49). Request 3, adding a stability controller, is valid: JP023, concerning a small laboratory balance, gives no motivation to combine and does not disclose that controller (paragraphs 50 to 56). As infringement of that version was not alleged, the action fails (paragraphs 57 to 59). Winnow must pay EUR 112,000 in representation costs and EUR 5,500 in expert costs for the main action and, for the counterclaim, 85% of the representation costs, the EUR 15,000 court fee and the expert costs, namely EUR 112,625 (paragraphs 60 to 64). The Rule 190 application is dismissed for lack of legal interest (paragraph 65).

Key points for practice

• A promotional video posted online by the patentee itself may be the closest prior art, assessed on what it shows to the public (paragraphs 36 and 37).
• A broadly drafted feature (« cleaning ») turns against the patentee where standard data processing techniques fall within it (paragraphs 41 to 43).
• Maintenance of the patent in a form not asserted against the defendant makes the defendant the largely prevailing party on the counterclaim (paragraphs 63 and 64).
• Practical point: a patentee filing conditional requests should plead infringement of each of them, failing which partial maintenance brings no advantage on costs.

Provisions applied

Agreement on a Unified Patent Court

Arts. 33(1)(b), 69, 73(1) and 82

Rules of Procedure

Rules 118, 158.2, 190, 220.1(a), 224.1(a), 354 and 355.4

European Patent Convention

Arts. 56, 69, 83 and 87

Case law cited

NanoString v 10x Genomics, Court of Appeal, 26 February 2024, Edwards Lifesciences v Meril, Munich Local Division, 4 April 2025, Fujifilm v Kodak, Mannheim Local Division, 2 April 2025, EPO Enlarged Board of Appeal, G 1/24

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.