International patent case law explorer
DHENNE AVOCATS · LE LAB
Compare decisions and understand outcomes. Explore patent case law and concrete examples of compensation, evidence preservation and preliminary injunctions.
Comparison tests each solution against the others. It shows which part of the reasoning stems from a procedure, a tradition or a particular court, and which part reflects a logic shared across patent systems. The Explorer extends the firm’s international outlook: it litigates in Paris and before the UPC, works with colleagues in Europe, the United States and Asia, and carries out comparative research, notably in Japan.
What the courts actually decided
Compare the type of relief, its outcome and the procedural stage. Every row links to the decision.
| Case and court | Outcome / amount | What this means |
|---|---|---|
| Minakem v MMLS / M2I SalinParis Court of Appeal 2024-02-09 RG 22/03911 |
1 941 000 EURPatent infringement damages |
EUR 1,941,000 in compensation, less the EUR 500,000 already paid. Fine-chemistry process, penalties and costs are separate. Merits award at this stage, subsequent history not checked. Read the sourceDispositif / Operative part |
| Oerlikon v BhagatUPC 2024-11-04 UPC_CFI_241/2023 |
15 000 EURInterim damages |
EUR 15,000 interim damages out of EUR 100,000 requested, for offering a textile machine at a trade fair. EUR 12,000 per breach is a separate penalty, EUR 750,000 is the value of the dispute. Read the source§§ 11.5-11.8, dispositif 4 / order 4 |
| Samsung v AppleIP High Court · Japon / Japan 2014-05-16 2013 (Ne) 10043 |
9 955 854 JPYClaim cap · declaratory judgment |
The declaratory judgment caps the claim for products 2 and 4 at JPY 9,955,854 before interest. FRAND royalty basis, this is not a general payment order. Read the sourcepp. 138-139 (PDF 148-149) |
| Microsoft v MotorolaUS Court of Appeals · Ninth Circuit 2015-07-30 14-35393 |
14 520 000 USDRAND contract damages |
USD 14.52m contractual award affirmed: USD 11.49m relocation and USD 3.03m legal costs. Breach of RAND obligations, distinct from patent infringement damages. Read the sourcepp. 15-16 et 64 / and 64 |
| InterDigital v LenovoCourt of Appeal · Royaume-Uni / UK 2024-07-12 [2024] EWCA Civ 743 |
178 300 000 USDGlobal licence · not damages |
Global licence set on appeal at USD 178.3m before interest. Adjustments to comparables determine the rate, this is licence consideration, not an infringement damages award. Read the source§ 284 |
| Oerlikon v BhagatUPC 2023-06-14 UPC_CFI_141/2023 |
GrantedEvidence preservation |
Ex parte preservation of technical and commercial documents at ITMA granted. No security required in these circumstances. An evidential measure, distinct from a sales injunction. Read the source§§ 4.3-4.7, dispositif / order |
| Progress Maschinen v AWM / SchnellUPC 2023-09-25 UPC_CFI_286/2023 and 287/2023 |
GrantedEvidence preservation |
Ex parte inspection and preservation granted, subject to EUR 50,000 security. Limited to Girderflex machines, access to the report requires a later order. Two joined proceedings, one order. Read the source§ 6.7, dispositif pp. 10-12 / order pp. 10-12 |
| C-KORE v NovawellUPC 2023-11-14 UPC_CFI_397/2023 |
GrantedEvidence preservation |
Ex parte evidence preservation granted for subsea testing equipment, subject to EUR 20,000 security. Court-appointed expert, restricted access and use confined to the merits proceedings. Read the sourceDispositif pp. 7-9 / order pp. 7-9 |
| Novawell v C-KORE · reviewUPC 2024-03-01 UPC_CFI_397/2023 |
Maintained / affirmedEvidence preservation |
Review application dismissed in full: the order of 14 November 2023 is maintained. This concerns the same preservation measure, not a second initial grant. Read the sourcep. 9, motifs et dispositif / reasons and order |
| Philips France Commercial v ThalesParis Court of Appeal 2023-02-14 RG 22/16659 |
Maintained / affirmedEvidence preservation |
Refusal to revoke an evidence-gathering order affirmed in a FRAND negotiation. Article 145 French CPC measure, distinct from a patent saisie-contrefaçon under Article L.615-5. Document selection and privilege safeguarded. Read the source§§ 89-90, dispositif / operative part |
| Ecoperl / Bricoperl v NeoperlParis Judicial Court 2024-02-02 RG 23/12720 |
Maintained / affirmedEvidence preservation |
Revocation of seven orders refused, the application to invalidate execution was inadmissible before this judge. Plumbing devices. One review decision, not seven new decisions. Read the source§§ 23-30, dispositif / operative part |
| Samsung v AppleRechtbank Den Haag 2011-10-14 KG ZA 11-818 · ECLI:NL:RBSGR:2011:BT7610 |
RefusedPreliminary injunctions |
Preliminary injunction refused in this UMTS SEP dispute: the proprietor’s offer and FRAND negotiations are decisive. This decision predates Huawei v ZTE. Read the sourceMotifs et dispositif / Reasons and operative part |
| Sisvel v XiaomiGerechtshof Den Haag 2020-03-17 200.265.385/01 · ECLI:NL:GHDHA:2020:711 |
RefusedPreliminary injunctions |
Refusal of the injunction affirmed after balancing the interests. Security offered is relevant. The EUR 653,352.71 in the order represents litigation costs, not damages. Read the source§§ 4.1-4.20, dispositif 5.1-5.3 / order |
| Nokia v OleadingRechtbank Den Haag 2023-01-11 KG ZA 22-1045 · ECLI:NL:RBDHA:2023:172 |
RefusedPreliminary injunctions |
Preliminary injunction refused: financial harm covered by security was weighed against serious consequences for distributors. Specific to interim relief and the facts of this case. Read the sourceMotifs et dispositif / Reasons and operative part |
| Neurim v Generics UKCourt of Appeal · Royaume-Uni / UK 2020-06-24 [2020] EWCA Civ 793 |
RefusedPreliminary injunctions |
Refusal affirmed: damages are adequate for the period before trial. The court emphasises the unusual facts, it does not assess a damages amount. Read the source§§ 54-57 |
| AstraZeneca v GlenmarkCourt of Appeal · Royaume-Uni / UK 2025-04-16 [2025] EWCA Civ 480 |
GrantedPreliminary injunctions |
Injunction granted until the conclusion of the form-of-order hearing, preserving the status quo in light of new evidence. Any extension beyond that requires a separate assessment. Read the source§ 91 |
| Mylan / Viatris v MSDParis Court of Appeal 2024-01-12 RG 22/16673 |
Maintained / affirmedPreliminary injunctions |
Preliminary injunction affirmed for sitagliptin/metformin. Withdrawal of the cassation appeal recorded on 7 January 2026 (24-12.551). EUR 60,000 under Article 700 is costs, not infringement compensation. Read the sourceDispositif / Operative part |
| Novartis v Sanofi / ZentivaParis Court of Appeal · 2014-09-16 13-10.189 |
Revoked / reversedPreliminary injunctions |
Revocation of the ex parte injunction left standing when the appeal was dismissed: an inter partes hearing remained possible before SPC expiry. Not a general rejection of interim relief. Read the sourceRead the sourceRéponse au deuxième moyen. Dispositif / second ground and operative part |
| myStromer v Revolt ZyclingUPC 2023-06-22 UPC_CFI_177/2023 |
GrantedPreliminary injunctions |
Ex parte injunction at Eurobike covering Germany, the Netherlands, France and Italy. EUR 500,000 security due within ten days, EUR 11,000 interim costs, not damages. Read the sourceDispositif I, VI / Order I, VI |
| 10x Genomics v NanoString · first instanceUPC 2023-09-19 UPC_CFI_2/2023 |
GrantedPreliminary injunctions |
Provisional measures granted on EP 4 108 782. Reversed on 26 February 2024: read both decisions together, not as two independent disputes. Read the sourceDispositif A, G / Order A, G |
| 10x Genomics v NanoString · first instanceJUB · Cour d’appel / UPC · Court of Appeal 2024-02-26 UPC_CoA_335/2023 |
Revoked / reversedPreliminary injunctions |
Injunction of 19 September 2023 reversed: invalidity for lack of inventive step appears more likely than validity. An interim assessment, not final patent revocation. Read the sourceMotifs 4.d.aa et 5.a, dispositif / Reasons and order |
| Ballinno v UEFA / KinexonUPC 2024-06-03 UPC_CFI_151/2024 |
RefusedPreliminary injunctions |
Application dismissed: lack of urgency, including almost three months without meaningful investigation, and insufficiently established infringement. Football video-assistant-referee technology. Read the sourceSommaire, dispositif 1 / Headnotes, order 1 |
| SES-imagotag v HanshowJUB · Cour d’appel / UPC · Court of Appeal 2024-05-13 UPC_CoA_1/2024 |
RefusedPreliminary injunctions |
Refusal affirmed: the products do not, on the balance of probabilities, implement all claimed features. Electronic shelf labels, the technical infringement case is decisive. Read the source§§ 44-47, dispositif / order |
| Ortovox v Mammut · reviewUPC 2024-04-09 UPC_CFI_452/2023 |
Maintained / affirmedPreliminary injunctions |
Injunction of 11 December 2023 maintained with EUR 500,000 security. Avalanche transceivers, subsequently upheld on appeal on 25 September 2024. Read the sourceDispositif I, IV / Order I, IV |
| Ortovox v Mammut · reviewJUB · Cour d’appel / UPC · Court of Appeal 2024-09-25 UPC_CoA_182/2024 |
Maintained / affirmedPreliminary injunctions |
Appeal dismissed: provisional measures remain in force. The additional EUR 19,858.40 is an interim costs award, not damages. Same procedural chain as the review of 9 April 2024. Read the sourceDispositif 2-4 / Order 2-4 |
Amounts in their original currency, without conversion or cross-system averages. Claims, interim damages, royalties, security, penalties and costs are not interchangeable. First-instance, review and appeal decisions remain separate and may concern the same dispute.
Find and compare decisions
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Decisions and sources
CUP&CINO v ALPINA: equivalence and the Hague test
Technical field: Mechanics
Issues: Claim interpretation · Equivalence · Validity
UPC_CFI_52/2025 · EP 3 610 762
Context: Milk frother, « directly closing » non-return valves set against spring-loaded valves.
Issue and holding: Do spring-loaded valves reproduce directly closing valves, at least by equivalence? No. The panel applies the Hague four-question test, rejects equivalence for want of the same function and upholds the patent as granted.
Practical relevance: Show concretely that the variant performs the same function and check that the description does not discard the solution relied on.
Framework and scope: UPC first instance. The Court of Appeal has not yet ruled on the criteria for equivalence.
Official source · Décision / Decision
Detailed case note · Glossary · Our practice
Last documentary verification: 2026-10-22.
Gucci v AGFA: public use and manufacturing methods
Technical field: Chemistry and materials
Issues: Novelty · Claim interpretation · Validity · Evidence
UPC_CoA_582/2025 and UPC_CoA_602/2025 · EP 3 388 490
Context: Decorating leather by UV curable inkjet printing, cross appeals against the Hamburg decision of 30 April 2025.
Issue and holding: Is the manufacturing method of a publicly available product disclosed where analysis of the product reveals it? Yes, and the skilled person needs no particular reason to carry out that analysis. Claim 1 is revoked, certain dependent combinations are maintained and the infringement action remains dismissed.
Practical relevance: Identify in the defence which dependent claims are defended as independently valid, and document the analysis of marketed products as prior art.
Framework and scope: UPC Court of Appeal ruling on the merits, with effect for Belgium, France, Germany, Italy and Sweden.
Official source · Décision / Decision
Detailed case note · Glossary · Our practice
Last documentary verification: 2026-10-22.
G 1/25 : adapting the description
Technical field: Chemistry and materials · Cross-sector relevance
Issues: Claim interpretation · Procedure
G 1/25 · ECLI:EP:BA:2026:G000125.20260903
Context: Hydroponic growing media, referral on adapting the description after claim amendments.
Issue and holding: Adaptation is required where an amendment creates an inconsistency causing non-compliance with the EPC provisions identified in the order.
Practical relevance: Identify the inconsistency and the legal requirement affected.
Framework and scope: EPO framework. Read alongside G 1/24, this is not an infringement ruling.
Official source · Dispositif / Order
G 1/24 : interpreting claims · Glossary · Our practice
Last documentary verification: 2026-10-12.
Tesla v InterDigital and Avanci (UKSC, [2026] UKSC 27, 2026)
[2026] UKSC 27, on appeal from [2025] EWCA Civ 193 ·
The Supreme Court allowed Tesla’s appeal: there is a serious issue to be tried on whether the Avanci 5G Platform licence is FRAND, the claims relate to InterDigital’s UK SEPs and the English court has jurisdiction, the Delaware Court of Chancery not being an available forum.
Read the decision in its procedural and technical context.
Read the detailed record for scope and limitations. Topic labels are not procedural outcomes.
Acer v Nokia (EWCA, [2026] EWCA Civ 564, 2026)
[2026] EWCA Civ 564, CA-2026-000349 ·
The English court has jurisdiction over Acer’s and ASUS’s RAND claims under gateway 11, but Nokia’s offer of an immediate licence adjustable by an ICC arbitral award is a RAND offer. The claims were stayed and the interim licence declarations discharged.
Read the decision in its procedural and technical context.
Read the detailed record for scope and limitations. Topic labels are not procedural outcomes.
Samsung v ZTE (EWHC (Pat), [2026] EWHC 999 (Pat), 2026)
[2026] EWHC 999 (Pat), HP-2024-000044 ·
The FRAND lump sum payable by Samsung under the global cross-licence is $392m, based on the 2020 ZTE-Apple licence adjusted for non-FRAND factors, Samsung’s licences with other licensors being rejected as comparables.
Read the decision in its procedural and technical context.
Read the detailed record for scope and limitations. Topic labels are not procedural outcomes.
ZTE v Samsung (LG München I, 7 O 64/25, 2026)
7 O 64/25 ·
With no comparable licence, ZTE’s offer is placed within the FRAND corridor by a top-down analysis (USD 170, 8 % aggregate burden, 5.7 % share), the FRAND defence fails and an injunction is granted.
Read the decision in its procedural and technical context.
Read the detailed record for scope and limitations. Topic labels are not procedural outcomes.
FRAND-Einwand III (BGH, KZR 10/25, 2026)
KZR 10/25 ·
Huawei v ZTE does not impose a strict order of steps: the implementer must respond promptly to a substantially complete offer, without the court first checking that it is FRAND, and provide consistent security. Absent willingness, the competition law defence and the proportionality objection fail, and no reference is made to the CJEU.
Read the decision in its procedural and technical context.
Read the detailed record for scope and limitations. Topic labels are not procedural outcomes.
InterDigital v prospective licensees (LG München I, 21 O 12112/25, 2025)
21 O 12112/25 ·
The court upholds the prohibition on seeking an interim licence over German patents from the High Court, as contrary to territoriality and to the Huawei v ZTE balance, and distinct from a prohibited anti-suit injunction.
Read the decision in its procedural and technical context.
Read the detailed record for scope and limitations. Topic labels are not procedural outcomes.
Samsung v ZTE (EWCA, [2025] EWCA Civ 1383, 2025)
[2025] EWCA Civ 1383, CA-2025-001926 ·
Absent a legitimate and substantiated objection to the chosen forum, a SEP owner that brings injunction proceedings to force FRAND determination in its preferred forum does not act in bad faith. The declarations based on such bad faith were set aside.
Read the decision in its procedural and technical context.
Read the detailed record for scope and limitations. Topic labels are not procedural outcomes.
ModernaTX v Pfizer (EWCA, [2025] EWCA Civ 1032, 2025)
[2025] EWCA Civ 1032 (CA-2024-002295 and CA-2024-002325) ·
Claim 3 of EP949 (mRNA with 100% replacement of uridine by m1Ψ) is novel over UPenn, which contains no individualised disclosure of the combination selected from two lists, and is not obvious. Pfizer and BioNTech’s appeal is dismissed.
Read the decision in its procedural and technical context.
Read the detailed record for scope and limitations. Topic labels are not procedural outcomes.
Generics (UK) v AstraZeneca (EWCA, [2025] EWCA Civ 903, 2025)
[2025] EWCA Civ 1383, CA-2025-001926 ·
The dapagliflozin patent, which did not make its antidiabetic utility plausible and was an arbitrary selection from WO 128, is invalid for lack of inventive step and insufficiency, and so are the SPCs. G 2/21 does not justify departing from Sandoz v BMS.
Read the decision in its procedural and technical context.
Read the detailed record for scope and limitations. Topic labels are not procedural outcomes.
Biogen v Sandoz, Viatris and Mepha (BPatGer, S2024_005 to S2024_007, 2025)
S2024_005, S2024_006, S2024_007 ·
Preliminary measures against three dimethyl fumarate generics are refused: the claimed 480 mg daily dose is likely obvious over the Kappos I phase II study.
Read the decision in its procedural and technical context.
Read the detailed record for scope and limitations. Topic labels are not procedural outcomes.
Mitsui Chemicals v Borealis (EPO, G 1/23, 2025)
G 1/23 · ECLI:EP:BA:2025:G000123.20250702
A product put on the market before the filing date cannot be excluded from the state of the art solely because its composition or internal structure could not be analysed and reproduced. Public technical information about it is also state of the art.
Read the decision in its procedural and technical context.
Read the detailed record for scope and limitations. Topic labels are not procedural outcomes.
G 1/24 : interpreting claims
Technical field: Mechanical engineering · Cross-sector relevance
Issues: Claim interpretation · Validity
G 1/24 · JO OEB 2025, A60
Context: Aerosol-generating article, referral arising from T 439/22.
Issue and holding: For patentability, claims remain the starting point, the description and drawings must always be consulted, even where the wording appears clear.
Practical relevance: Read the claim in its technical context.
Framework and scope: Articles 52-57 EPC. See G 1/25 on the distinct issue of adapting the description.
Official source · Sommaire / Headnote
T 439/22 : the referral leading to G 1/24 · G 1/25 : adapting the description · NanoString v 10x Genomics : provisional measures · Glossary · Our practice
Last documentary verification: 2026-10-12.
Optis v Apple (EWCA, [2025] EWCA Civ 552, 2025)
[2025] EWCA Civ 552, CA-2024-000695 ·
The Court of Appeal set Apple’s worldwide FRAND licence at USD 0.15 per unit, a lump sum of USD 502m before interest for 2013 to 2027, and treated Optis’s Texas judgment as a floor for the royalties.
Read the decision in its procedural and technical context.
Read the detailed record for scope and limitations. Topic labels are not procedural outcomes.
AstraZeneca v Glenmark Pharmaceuticals (EWCA, [2025] EWCA Civ 480, 2025)
[2025] EWCA Civ 1383, CA-2025-001926 ·
In the light of new evidence that further generic entry was certain, there was real doubt as to the adequacy of damages for both sides. The status quo was preserved and an interim injunction granted until the form of order hearing.
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Read the detailed record for scope and limitations. Topic labels are not procedural outcomes.
EVS SEP holder v mobile phone distributor (OLG München, 6 U 3824/22 Kart, 2025)
6 U 3824/22 Kart ·
Absent qualified security based on the holder’s last offer and covering the worldwide portfolio licence proposed, the FRAND defence fails without the offer being examined. The injunction is upheld.
Read the decision in its procedural and technical context.
Read the detailed record for scope and limitations. Topic labels are not procedural outcomes.
Tesla v InterDigital and Avanci (EWCA, [2025] EWCA Civ 193, 2025)
[2025] EWCA Civ 193, CA-2024-001749 ·
By a majority, the Court of Appeal dismissed Tesla’s appeal: the FRAND undertaking does not oblige SEP owners to license collectively, so there is no serious issue to be tried on whether the Avanci 5G Platform licence is FRAND, Arnold LJ dissented.
Read the decision in its procedural and technical context.
Read the detailed record for scope and limitations. Topic labels are not procedural outcomes.
Lenovo v Ericsson (EWCA, [2025] EWCA Civ 182, 2025)
[2025] EWCA Civ 182, CA-2024-002821 ·
Ericsson is in breach of its good faith obligation under clause 6.1 by pursuing injunctions abroad although Lenovo has undertaken to enter into the cross-licence determined by the Patents Court. A willing licensor would grant an interim licence, with the royalty set at the mid-point between the offers.
Read the decision in its procedural and technical context.
Read the detailed record for scope and limitations. Topic labels are not procedural outcomes.
Janssen Biotech v Samsung Bioepis (Gerechtshof Den Haag, 200.337.844/01, 2025)
200.337.844/01 · ECLI:NL:GHDHA:2025:542
The manufacturing for export waiver requires neither a third country marketing authorisation at notification nor a country free of rights, and permits stockpiling for entry as soon as rights expire. The dismissal of the holder’s claims is upheld.
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Read the detailed record for scope and limitations. Topic labels are not procedural outcomes.
Merck Serono v Comptroller-General of Patents (EWCA, [2025] EWCA Civ 45, 2025)
[2025] EWCA Civ 1383, CA-2025-001926 ·
Bound by its decision in Newron, which applied Santen, the Court of Appeal could not depart from Santen and would not have done so in any event. The SPC for cladribine fails under Article 3(d) because of earlier MAs for another indication.
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Read the detailed record for scope and limitations. Topic labels are not procedural outcomes.
Alcatel Lucent v Amazon (EWCA, [2025] EWCA Civ 43, 2025)
[2025] EWCA Civ 43, CA-2024-002342 ·
Amazon’s claim for a declaration that Nokia would grant an interim licence of its RAND video portfolio, and for specific performance of that licence, has a real prospect of success. The amendments refused at first instance were allowed.
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Read the detailed record for scope and limitations. Topic labels are not procedural outcomes.
Teva and Others v Merck Sharp & Dohme and Merck Sharp & Dohme v Clonmel (CJEU, C-119/22 and C-149/22, 2024)
C-119/22 and C-149/22 (joined cases) ·
Article 3(c) does not preclude an SPC for a combination where one ingredient already had an SPC. Under Article 3(a), express mention of a combination in the claims is not enough, as it must necessarily fall under the invention.
Read the decision in its procedural and technical context.
Read the detailed record for scope and limitations. Topic labels are not procedural outcomes.
Oerlikon v Bhagat
UPC_CFI_241/2023
EUR 15,000 interim damages out of EUR 100,000 requested, for offering a textile machine at a trade fair. EUR 12,000 per breach is a separate penalty. EUR 750,000 is the value of the dispute.
Read the order and distinguish the initial measure from its subsequent review.
Outcome at the stated stage. Subsequent developments are mentioned only where identified.
Detailed analysis · Official source · §§ 11.5-11.8, dispositif 4 / order 4
Panasonic v Xiaomi (EWCA, [2024] EWCA Civ 1143, 2024)
[2024] EWCA Civ 1143, CA-2024-001709 ·
A SEP holder which has asked the English court to set a global licence and undertaken to enter into it breaches its clause 6.1 duty of good faith by pursuing injunctions abroad. The majority declared that a willing licensor would grant an interim licence on the terms set by the court.
Read the decision in its procedural and technical context.
Read the detailed record for scope and limitations. Topic labels are not procedural outcomes.
Motorola Mobility v Ericsson (EWCA, [2024] EWCA Civ 1100, 2024)
[2024] EWCA Civ 1100, CA-2024-001320 ·
The interim injunction based on a UK patent essential to 5G was refused: loss caused by the alleged UK infringement is compensable in money, and losses suffered abroad due to the opponent’s injunctions are not caused by that infringement.
Read the decision in its procedural and technical context.
Read the detailed record for scope and limitations. Topic labels are not procedural outcomes.
Ortovox v Mammut · review
UPC_CoA_182/2024
Appeal dismissed: provisional measures remain in force. The additional EUR 19,858.40 is an interim costs award, not damages. Same procedural chain as the review of 9 April 2024.
Read the order and distinguish the initial measure from its subsequent review.
Outcome at the stated stage. Subsequent developments are mentioned only where identified.
Detailed analysis · Official source · Dispositif 2-4 / Order 2-4
Accord Healthcare v Sanofi (Paris Judicial Court, RG 21/06416, 2024)
RG 21/06416 ·
The French part of EP 2 493 466 (cabazitaxel after docetaxel) is annulled for lack of inventive step, the Tropic trial announced before priority giving a reasonable expectation of success. The infringement action is dismissed.
Read the decision in its procedural and technical context.
Read the detailed record for scope and limitations. Topic labels are not procedural outcomes.
InterDigital v Lenovo (EWCA, [2024] EWCA Civ 743, 2024)
[2024] EWCA Civ 743, CA-2023-001489 and CA-2023-001492 ·
A court-determined FRAND licence covers all past sales irrespective of limitation and carries compound interest at 4%. The rate derived from the comparable licence had to be corrected for non-FRAND discounts on past sales, and the lump sum was increased to $178.3 million before interest.
Read the decision in its procedural and technical context.
Read the detailed record for scope and limitations. Topic labels are not procedural outcomes.
Panasonic v Xiaomi (EWHC (Pat), [2024] EWHC 1733 (Pat), 2024)
[2024] EWHC 1733 (Pat), HP-2023-000025 ·
Good faith performance of the FRAND undertaking does not require a SEP holder that has undertaken to enter into the court-determined licence to grant an interim licence. The declaration was also refused for want of utility and out of comity towards the German courts.
Read the decision in its procedural and technical context.
Read the detailed record for scope and limitations. Topic labels are not procedural outcomes.
T 439/22 : the referral leading to G 1/24
Technical field: Mechanical engineering · Cross-sector relevance
Issues: Claim interpretation · Novelty · Procedure
T 439/22 · JO OEB 2024, A104 · EP 3 076 804
Context: Opposition to an aerosol-generating article patent, meaning of “gathered sheet”.
Issue and holding: The Board refers questions on the role of the description in interpreting claims for patentability.
Practical relevance: Connect claim interpretation with the novelty assessment.
Framework and scope: Referral decision, not a final validity ruling. G 1/24 answers the referral in the same proceedings.
Official source · Faits I, II. Dispositif / Facts I, II. Order
G 1/24 : interpreting claims · Glossary · Our practice
Last documentary verification: 2026-10-12.
Ballinno v UEFA / Kinexon
UPC_CFI_151/2024
Application dismissed: lack of urgency, including almost three months without meaningful investigation, and insufficiently established infringement. Football video-assistant-referee technology.
Read the order and distinguish the initial measure from its subsequent review.
Outcome at the stated stage. Subsequent developments are mentioned only where identified.
Detailed analysis · Official source · Sommaire. Dispositif 1 / Headnotes, order 1
SES-imagotag v Hanshow
UPC_CoA_1/2024
Refusal affirmed: the products do not, on the balance of probabilities, implement all claimed features. Electronic shelf labels. The technical infringement case is decisive.
Read the order and distinguish the initial measure from its subsequent review.
Outcome at the stated stage. Subsequent developments are mentioned only where identified.
Detailed analysis · Official source · §§ 44-47, dispositif / order
Ortovox v Mammut · review
UPC_CFI_452/2023
Injunction of 11 December 2023 maintained with EUR 500,000 security. Avalanche transceivers. Subsequently upheld on appeal on 25 September 2024.
Read the order and distinguish the initial measure from its subsequent review.
Outcome at the stated stage. Subsequent developments are mentioned only where identified.
Detailed analysis · Official source · Dispositif I, IV / Order I, IV
Mepha v Bristol-Myers Squibb (BPatGer, O2022_007, 2024)
O2022_007 ·
The nullity action against the Swiss apixaban SPC is dismissed: the US priority is valid through a tacit transfer, and the technical effect, derivable from the application within the meaning of G 2/21, supports inventive step.
Read the decision in its procedural and technical context.
Read the detailed record for scope and limitations. Topic labels are not procedural outcomes.
Novawell v C-KORE · review
UPC_CFI_397/2023
Review application dismissed in full: the order of 14 November 2023 is maintained. This concerns the same preservation measure, not a second initial grant.
Read the order and distinguish the initial measure from its subsequent review.
Outcome at the stated stage. Subsequent developments are mentioned only where identified.
Detailed analysis · Official source · p. 9, motifs et dispositif / reasons and order
NanoString v 10x Genomics : provisional measures
Technical field: Biotechnology
Issues: Claim interpretation · Inventive step · Injunctions and provisional measures · Validity
UPC_CoA_335/2023 · APL_576355/2023 · EP 4 108 782
Context: Optical detection of molecules, appeal against a preliminary injunction. Order of 26 February, corrected on 11 March 2024.
Issue and holding: The Court reverses the injunction: invalidity for lack of inventive step appears more likely than validity. The description and drawings inform claim interpretation.
Practical relevance: Prepare validity and infringement arguments together.
Framework and scope: Article 62 UPCA, Rule 211.2 and Article 69 EPC. Interim assessment, not final revocation.
Official source · Motifs / Reasons 4.d.aa et 5.a
Full analysis and corrected order · G 1/24 : interpreting claims · Glossary · Our practice
Last documentary verification: 2026-10-12.
Minakem v MMLS / M2I Salin
RG 22/03911
EUR 1,941,000 in compensation, less the EUR 500,000 already paid. Fine-chemistry process. Penalties and costs are separate. Merits award at this stage. Subsequent history not checked.
Read the order and distinguish the initial measure from its subsequent review.
Outcome at the stated stage. Subsequent developments are mentioned only where identified.
Official source · Dispositif / Operative part
Ecoperl / Bricoperl v Neoperl
RG 23/12720
Revocation of seven orders refused. The application to invalidate execution was inadmissible before this judge. Plumbing devices. One review decision, not seven new decisions.
Read the order and distinguish the initial measure from its subsequent review.
Outcome at the stated stage. Subsequent developments are mentioned only where identified.
Official source · §§ 23-30, dispositif / operative part
Mylan v Merck Sharp & Dohme (CA Paris, RG 22/16673, 2024)
RG 22/16673 ·
The provisional ban on sitagliptin and metformin generics is upheld: the combination being expressly claimed, the Teva v Gilead test is unnecessary, and Article 3(c) refers to a granted certificate, not an earlier application.
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Mylan v Gilead Sciences Finland and Others (CJEU, C-473/22, 2024)
C-473/22 ·
Article 9(7) of Directive 2004/48 does not preclude a national regime of no-fault liability of the applicant for provisional measures, provided the court can adjust damages to the circumstances, including the defendant’s contribution to its loss.
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C-KORE v Novawell
UPC_CFI_397/2023
Ex parte evidence preservation granted for subsea testing equipment, subject to EUR 20,000 security. Court-appointed expert, restricted access and use confined to the merits proceedings.
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Outcome at the stated stage. Subsequent developments are mentioned only where identified.
Detailed analysis · Official source · Dispositif pp. 7-9 / order pp. 7-9
Standardessentielle Mobilfunknetz-Patente (OLG Karlsruhe, 6 U 204/22 Kart, 2023)
6 U 204/22 Kart · ECLI:DE:OLGKARL:2023:1011.6U204.22KART.00
The licensed operator’s claim is dismissed: the licence is not discriminatory, the clause excluding a duty to pursue third parties waives damages claims, and the SEP holder does not guarantee the success of its efforts against competitors.
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Alexion Pharmaceuticals v Novartis (EPO, G 1/22 and G 2/22, 2023)
G 1/22 and G 2/22 · ECLI:EP:BA:2023:G000122.20231010
The EPO is competent to assess entitlement to priority. Entitlement is presumed, rebuttably and under the autonomous law of the EPC, in favour of an applicant claiming priority under Article 88(1) EPC, including for jointly filed PCT applications.
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Progress Maschinen v AWM / Schnell
UPC_CFI_286/2023 and 287/2023
Ex parte inspection and preservation granted, subject to EUR 50,000 security. Limited to Girderflex machines. Access to the report requires a later order. Two joined proceedings, one order.
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Outcome at the stated stage. Subsequent developments are mentioned only where identified.
Detailed analysis · Official source · § 6.7, dispositif pp. 10-12 / order pp. 10-12
10x Genomics v NanoString · first instance
UPC_CFI_2/2023
Provisional measures granted on EP 4 108 782. Reversed on 26 February 2024: read both decisions together, not as two independent disputes.
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Outcome at the stated stage. Subsequent developments are mentioned only where identified.
Detailed analysis · Official source · Dispositif A, G / Order A, G
Sankyo v Biogaran and others (Cass. com., 21-25.143, 2023)
21-25.143 ·
Notification of an SPC lapse to the representative appointed at filing is valid, payment of fees by another firm not amounting to a new appointment. The lapse, being indivisible, benefits all parties to the proceedings.
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BMS v Sandoz and others (Gerechtshof Den Haag, 200.327.532/01, 2023)
200.327.532/01 and 200.328.173/01 · ECLI:NL:GHDHA:2023:1593
Under G 2/21 the technical effect relied on for inventive step need only be derivable from the application, without being proven or made plausible there. As the apixaban patent met that test, the court enjoined the generic companies from infringing the SPC.
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myStromer v Revolt Zycling
UPC_CFI_177/2023
Ex parte injunction at Eurobike covering Germany, the Netherlands, France and Italy. EUR 500,000 security due within ten days. EUR 11,000 interim costs, not damages.
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Outcome at the stated stage. Subsequent developments are mentioned only where identified.
Detailed analysis · Official source · Dispositif I, VI / Order I, VI
Oerlikon v Bhagat
UPC_CFI_141/2023
Ex parte preservation of technical and commercial documents at ITMA granted. No security required in these circumstances. An evidential measure, distinct from a sales injunction.
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Outcome at the stated stage. Subsequent developments are mentioned only where identified.
Detailed analysis · Official source · §§ 4.3-4.7, dispositif / order
Amgen v Sanofi
Technical field: Biotechnology · Pharmaceuticals
Issues: Sufficiency / enablement · Validity
21-757 · Supreme Court of the United States · official full text
Supreme Court review · Antibodies / biotech
The Court affirmed the enablement ruling against functional claims to a genus of anti-PCSK9 antibodies. The disclosure must enable the full scope claimed. Reasonable experimentation remains permissible.
Analytical focus : Claim scope and technical teaching
Scope and limitation : US enablement under § 112(a), not automatically equivalent to Article 83 EPC.
Read the judgment (US Supreme Court)
Source type: official full text (slip opinion), Supreme Court of the United States, No. 21-757, 18 May 2023. Opened and checked on 3 October 2026.
Opinion, pp. 13 to 15 and 18 to 19
Legal glossary · Related analysis · Our practice
Legal framework: 35 USC § 112(a)
Optis v Apple (EWHC (Pat), [2023] EWHC 1095 (Ch), 2023)
[2023] EWHC 1095 (Ch), HP-2019-000006 ·
Marcus Smith J set the worldwide FRAND licence of Optis’s portfolio for Apple at USD 5.13m a year, that is USD 25.65m for the future and USD 30.78m for 2017 to 2022, plus interest, pricing the Stack on Apple’s lump sum licences.
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Sandoz v Bristol-Myers Squibb (EWCA, [2023] EWCA Civ 472, 2023)
[2023] EWCA Civ 472 (CA-2022-001183 and 001203) ·
Plausibility applies to a single compound claim. As the application linked no result to apixaban, its activity was not plausible and the patent was invalid, the outcome being the same under inventive step or sufficiency.
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Intex v Ericsson (Delhi High Court, FAO(OS)(COMM) 296/2018, 2023)
FAO(OS)(COMM) 296/2018 et FAO(OS)(COMM) 297/2018 (sur CS(OS) 1045/2014, I.A. 6735/2014) ·
The Delhi High Court upheld the prima facie finding that Intex, an unwilling licensee, infringed eight Ericsson SEPs and ordered it to pay the entire royalty amount within four weeks.
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G 2/21, post-published evidence
Technical field: Chemistry and materials · Cross-sector relevance
Issues: Inventive step · Evidence
G 2/21 · OJ EPO 2023, A85 · EPO · Enlarged Board of Appeal · official full text
Enlarged Board referral · Insecticides · cross-sector relevance
Evidence cannot be rejected solely because it post-dates filing. The relied-on technical effect must be encompassed by the technical teaching and embodied by the originally disclosed invention.
Analytical focus : Technical effect and post-published evidence
Scope and limitation : An inventive-step referral arising from an insecticide dispute, included for its cross-sector relevance. Sufficiency is a separate question.
Read the judgment (European Patent Office)
Source type: official full text, Official Journal EPO 2023, A85, decision of the Enlarged Board of Appeal of 23 March 2023. Opened and checked on 3 October 2026.
Dispositif / Order 1 and 2, § 77
Legal glossary · Related analysis · Our practice
Legal framework: Articles 56 and 83 EPC
InterDigital v Lenovo (EWHC (Pat), [2023] EWHC 539 (Pat), 2023)
[2023] EWHC 539 (Pat), HP-2019-000032 ·
Mellor J set the worldwide FRAND licence of InterDigital’s portfolio for Lenovo at USD 0.175 per unit, a lump sum of USD 138.7m for sales from 2007 to the end of 2023, taking LG 2017 as the best comparable. Neither party’s offer was FRAND.
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Philips France Commercial v Thales (Paris Court of Appeal, RG 22/16659, 2023)
RG 22/16659 ·
The court upholds the refusal to set aside the ex parte order authorising, under Article 145 of the Code of Civil Procedure, a seizure of documents at Philips France Commercial in the context of FRAND negotiations.
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Nokia v Oleading (Rechtbank Den Haag, KG ZA 22-1045, 2023)
C/09/638658 / KG ZA 22-1045 · ECLI:NL:RBDHA:2023:172
As Nokia’s loss was purely financial and covered by security, while an injunction would have serious and irreversible consequences for the distributors, the interim relief judge refused a provisional injunction on two 4G and 5G essential patents.
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Optis v Apple (EWCA, [2022] EWCA Civ 1411, 2022)
[2022] EWCA Civ 1411, CA-2021-003153 ·
The Court of Appeal upholds the FRAND injunction: an implementer that does not undertake to take a licence on court determined FRAND terms faces an injunction, but may give that undertaking at any time.
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Novartis v Mylan (Gerechtshof Den Haag, 200.313.064/01, 2022)
200.313.064/01 · ECLI:NL:GHDHA:2022:2079
The interim injunction was refused: since the therapeutic effect of the 0.5 mg dose was not directly and unambiguously disclosed in the application as filed, and plausibility is not enough, the patent faces a serious risk of invalidity for added matter.
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SEP holder v smartphone manufacturer (LG München I, 21 O 11522/21, 2022)
21 O 11522/21 ·
A SEP holder that complies with its FRAND obligations is not exposed to the disproportionality exception in section 139(1), third sentence, PatG, even for a complex product. The FRAND defence fails for lack of willingness.
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Nokia v OnePlus (EWCA, [2022] EWCA Civ 947, 2022)
[2022] EWCA Civ 947, CA-2021-003304 ·
The English court retains jurisdiction and refuses to stay Nokia’s claim for infringement of UK SEPs in favour of OPPO’s global FRAND rate-setting claim in Chongqing, the dispute being an infringement claim in which the FRAND undertaking is a defence.
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HEVC SEP holder v Z. group companies (OLG Düsseldorf, 2 U 25/21, 2022)
2 U 25/21 · ECLI:DE:OLGD:2022:0207.2U25.21.00
A purely preventive anti-anti-suit injunction is inadmissible for want of legitimate interest where no anti-suit injunction is sought or threatened and no main action is pending in a forum offering that remedy.
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Steuerkanalsignalisierung II (OLG Karlsruhe, 6 U 149/20, 2022)
6 U 149/20 · ECLI:DE:OLGKARL:2022:0202.6U149.20.00
The Karlsruhe Higher Regional Court grants an injunction, recall and destruction: the FRAND defence fails for lack of willingness, the defendants having held back their objections to the calculation method for two years.
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Ericsson v Apple (Rechtbank Den Haag, KG ZA 21-914, 2021)
C/09/618542 / KG ZA 21-914 · ECLI:NL:RBDHA:2021:13881
The judge confined jurisdiction over the non-Dutch Apple companies to anti-suit injunctions taking effect in the Netherlands and Belgium, then dismissed Ericsson’s anti-anti-suit claims for want of a concrete threat and because enforcing a covenant not to sue is not unlawful.
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Vestel v Philips and Access Advance (Rechtbank Den Haag, HA ZA 20-1236, 2021)
C/09/604737 / HA ZA 20-1236 · ECLI:NL:RBDHA:2021:14372
Having jurisdiction over Philips, the Dutch court also has jurisdiction, on grounds of connection under Article 7(1) Rv, over Access Advance and two HEVC pool members established outside the EU in Vestel’s FRAND action.
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Oppo v Sharp (SPC, (2020) Zui Gao Fa Zhi Min Xia Zhong No. 517, 2021)
(2020)最高法知民辖终517号 (decision under appeal: Shenzhen Intermediate People’s Court, (2020)粤03民初689号, 16 October 2020) ·
The Supreme People’s Court upheld the Shenzhen court’s jurisdiction to hear OPPO’s claim and to set worldwide licence terms for Sharp’s standard essential patents, without any forum agreement.
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Vestel v Access Advance (EWCA, [2021] EWCA Civ 440, 2021)
[2021] EWCA Civ 440. A3/2020/0019 ·
Absent any asserted legally enforceable right to a FRAND licence, an implementer cannot obtain a free-standing declaration from the English court that a pool licence is or is not FRAND. Jurisdiction over Philips and Access Advance was declined.
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Lundbeck v Commission (CJEU, C-591/16 P, 2021)
C-591/16 P · ECLI:EU:C:2021:243
The appeal is dismissed: the generic manufacturers were potential competitors of Lundbeck despite its process patents, and the agreements delaying their entry in return for reverse payments are restrictions by object, even if they stay within the scope of the patents.
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G 1/19 : computer-implemented simulations
Technical field: Software and AI · Cross-sector relevance
Issues: Inventive step · Validity
G 1/19 · ECLI:EP:BA:2021:G000119.20210310
Context: Simulation of pedestrian movement, referral concerning technical contribution.
Issue and holding: A simulation can produce a technical effect relevant to inventive step. Modelling a system based on technical principles is not sufficient by itself.
Practical relevance: Apply the COMVIK approach to the claimed contribution.
Framework and scope: Articles 52 and 56 EPC, no automatic patentability of simulations or software.
Official source · Sommaire 1-3 / Headnote 1-3
COMVIK : technical and non-technical features · Glossary · Our practice
Last documentary verification: 2026-10-12.
3G and 4G SEP holder v Chinese smartphone maker (LG München I, 7 O 14276/20, 2021)
7 O 14276/20 ·
The anti-anti-suit injunction is upheld. The chamber finds a threat of first infringement in particular where a global royalty action is filed in an anti-suit forum or no written undertaking is given.
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Wurzelsequenzordnung (OLG Karlsruhe, 6 U 130/20, 2021)
6 U 130/20 · ECLI:DE:OLGKARL:2021:0212.6U130.20.00
Enforcement of the injunction is stayed against security: a counter-offer leaving the royalty to the patentee’s equitable determination (section 315(3) BGB) in principle shows sufficient willingness to take a FRAND licence.
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Ono Pharmaceutical v INPI (CA Paris, RG 18/10540, 2021)
RG 18/10540 ·
The second SPC for nivolumab is refused: Article 3(c) bars it for Ono, which already holds a certificate for the product, and nivolumab, developed through an independent inventive step, is not protected by the upstream patent under Article 3(a).
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Mobilstation (OLG Karlsruhe, 6 U 103/19, 2020)
6 U 103/19 · ECLI:DE:OLGKARL:2020:1209.6U103.19.00
Defendants whose conduct aimed at delaying a licence cannot rely on the FRAND defence. An explained offer that is FRAND for an average licensee suffices, and a counter-offer is due unless the offer is clearly non-FRAND.
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LTE SEP holder v car manufacturer (LG Düsseldorf, 4c O 17/19, 2020)
4c O 17/19 · ECLI:DE:LGD:2020:1126.4C.O17.19.00
Stay and preliminary reference to the CJEU on suppliers’ priority for a licence and on refining the Huawei v ZTE steps, the chamber favouring a right of every supplier to an unrestricted licence.
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FRAND-Einwand II (BGH, KZR 35/17, 2020)
KZR 35/17 (lower courts: LG Düsseldorf, 4a O 144/14, 3 November 2015, OLG Düsseldorf, I-15 U 65/15, 30 March 2017) · ECLI:DE:BGH:2020:241120UKZR35.17.0
The BGH restored the injunction against the Haier group companies: absent a clear and continuing willingness to take a FRAND licence, the SEP holder’s action was not abusive, even if its offers were discriminatory.
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Teva v Merck Sharp & Dohme (CA Paris, RG 18/23642, 2020)
RG 18/23642 ·
The SPC for the ezetimibe and simvastatin combination, a second certificate on the same patent, is invalid under Article 3(a) and (c), the combination not being a distinct product protected as such. Insufficiency of the combination claims is rejected.
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Conversant v Huawei (SPC, (2019) 最高法知民终732、733、734号之二, 2020)
(2019) 最高法知民终732、733、734号之二 ·
The Supreme People’s Court upheld the order prohibiting Conversant, on pain of RMB 1 million per day, from seeking provisional enforcement of the German injunction against Huawei before its final ruling on the licence rate. Neither comity nor an offer of security justified lifting the order.
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Unwired Planet v Huawei
Technical field: Telecommunications
Issues: Global licensing · Injunctions and provisional measures · Jurisdiction
[2020] UKSC 37 · UK Supreme Court · official full text
Supreme Court appeal · Telecommunications / SEP
The Court accepted that English courts may determine global FRAND licence terms under the ETSI undertaking, with relief against infringement of a UK patent linked to acceptance of that licence.
Analytical focus : Global licence · ETSI undertaking
Scope and limitation : Contractual jurisdiction does not confer jurisdiction to determine the validity of foreign patents. No numerical rate is extracted in this record.
Read the judgment (UK Supreme Court)
Source type: official full text, [2020] UKSC 37, 26 August 2020. Opened and checked on 3 October 2026.
§§ 90 to 93
Legal glossary · Related analysis · Our practice
Legal framework: Engagement ETSI FRAND / ETSI FRAND undertaking
Lizenz in Wertschöpfungskette (LG Mannheim, 2 O 34/19, 2020)
2 O 34/19 · ECLI:DE:LGMANNH:2020:0818.2O34.19.00
A car maker that refers the SEP holder to its suppliers and bases the royalty on the price of telematics units is not willing to take a licence. An injunction is granted.
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FTC v Qualcomm (9th Cir., No. 19-16122, 2020)
No. 19-16122. D.C. No. 5:17-cv-00220-LHK ·
Qualcomm’s OEM-only licensing, its refusal to license rival chipmakers and its « no license, no chips » policy do not violate the Sherman Act. Any breach of its FRAND commitments is a matter for contract or patent law.
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Santen v Directeur général de l’INPI (CJEU, C-673/18, 2020)
C-673/18 · ECLI:EU:C:2020:531
An authorisation covering a new therapeutic application of an active ingredient already authorised for a different application cannot be the first authorisation under Article 3(d), the Court departs from paragraph 27 of Neurim.
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Regeneron v Kymab (UKSC, [2020] UKSC 27, 2020)
[2020] UKSC 27 ·
A product claim covering a range is insufficient if the disclosure does not enable substantially all products within a relevant range to be made at the priority date, even if the invention would benefit the whole range. Claim 1 of the 163 Patent is invalid.
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Neurim Pharmaceuticals v Generics UK (EWCA, [2020] EWCA Civ 793, 2020)
[2020] EWCA Civ 793 (A3/2020/0808 and A3/2020/0809) ·
With trial four months away, damages were an adequate remedy for the patentee: the refusal of an interim injunction against the Circadin generic was upheld.
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Sisvel v Haier (FRAND-Einwand I)
Technical field: Telecommunications
Issues: FRAND negotiations · Injunctions and provisional measures · Global licensing
KZR 36/17 · Bundesgerichtshof · Kartellsenat · full-text reproduction
Revision before the BGH · Telecommunications / SEP
The BGH required a clear willingness to conclude a FRAND licence and meaningful participation in negotiations. The proprietor’s information duties and the licensee’s conduct must be assessed in context.
Analytical focus : Negotiation conduct · willingness
Scope and limitation : The patent had expired and the injunction claim had become moot. The remaining claims must not be counted as a new injunction grant.
Read the judgment (WIPO Lex, texte du BGH / BGH judgment)
Source type: full German text reproduced by WIPO Lex, not the official publication of the Bundesgerichtshof. BGH, KZR 36/17, 5 May 2020. Opened and checked on 3 October 2026.
Leitsätze a and b. Gründe II.2 and III
Legal glossary · Related analysis · Our practice
Legal framework: Article 102 TFUE / TFEU
Official BGH publication · Official database reference checked on 13 October 2026.
Royalty Pharma Collection Trust v Deutsches Patent- und Markenamt (CJEU, C-650/17, 2020)
C-650/17 · ECLI:EU:C:2020:327
A product within a functional definition is protected under Article 3(a) if it necessarily falls under the invention and is specifically identifiable at the filing or priority date. It is not if it was developed after that date through an independent inventive step.
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Sisvel v Xiaomi (Gerechtshof Den Haag, 200.265.385/01, 2020)
200.265.385/01 · ECLI:NL:GHDHA:2020:711
The balance of interests requires refusal of the interim injunction on Sisvel’s essential patent, even assuming the patent valid and infringed and Xiaomi’s FRAND defence bound to fail. The first instance ruling was upheld.
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Lenovo v IPCom (Paris Court of Appeal, RG 19/21426, 2020)
RG 19/21426, arrêt n° 14/2020 (ordonnance déférée : TGI Paris, réf., 8 novembre 2019, RG 19/59311) ·
The Paris Court of Appeal upheld the order requiring Lenovo’s US companies to withdraw their anti-suit motion targeting IPCom’s French infringement actions, a manifestly unlawful disturbance, but set aside the general ban on new applications.
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TCL v Philips and ETSI (Paris Judicial Court, RG 19/02085, 2020)
RG 19/02085 ·
The pre-trial judge holds that the Paris Judicial Court has jurisdiction over Philips as co-defendant with ETSI and rejects the lis pendens and related actions objections based on the English infringement action.
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Generics (UK) v Competition and Markets Authority (CJEU, C-307/18, 2020)
C-307/18 · ECLI:EU:C:2020:52
A generic company ready to enter is a potential competitor of the holder of a disputed process patent. A settlement with transfers of value explicable only by the absence of competition is a restriction by object, and a strategy of such settlements may be abusive.
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Philips v Asus (Gerechtshof Den Haag, 200.233.166/01, 2019)
200.233.166/01 (rechtbank : C/09/514186 / HA ZA 16-805) · ECLI:NL:GHDHA:2019:3535
The Hague Court of Appeal held EP 1 440 525 valid and infringed, granted an injunction and rejected Asus’s FRAND defence for want of any genuine willingness to take a licence.
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Teva UK and others v Gilead Sciences (EWCA, [2019] EWCA Civ 2272, 2019)
[2019] EWCA Civ 2272 (A3 2018 2542) ·
A claim to TD « and optionally other therapeutic ingredients » does not necessarily relate to the TD and emtricitabine combination. The Truvada SPC is invalid under Article 3(a).
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Nokia v Continental (OLG München, 6 U 5042/19, 2019)
6 U 5042/19 ·
Applying in the United States for an anti-suit injunction to block German infringement actions interferes with the patent as a property-like right. The preventive prohibition against the parent company is upheld.
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Bayer Pharma v Richter Gedeon and Exeltis (CJEU, C-688/17, 2019)
C-688/17 · ECLI:EU:C:2019:722
Article 9(7) of Directive 2004/48 does not preclude national rules excluding compensation for harm the injured party failed to avoid by acting as could be expected of it, provided the court can weigh all objective circumstances, including any abuse by the applicant.
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Philips v Wiko (Gerechtshof Den Haag, 200.219.487/01, 2019)
200.219.487/01 · ECLI:NL:GHDHA:2019:3613
As Wiko had not shown itself willing to take a licence before the proceedings, Philips’s action on a UMTS essential patent was not abusive. An injunction was granted and a stay pending German proceedings refused.
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JCB v Manitou : expert assistance in a saisie-contrefaçon
Technical field: Mechanical engineering
Issues: Evidence · Evidence preservation / saisie-contrefaçon · Procedure
Pourvoi 18-15.005 · ECLI:FR:CCASS:2019:CO00325
Context: Construction machinery, patent attorneys who conducted private tests were appointed to assist the bailiff.
Issue and holding: Their earlier involvement does not bar appointment. This assistance is not a court expert examination subject to the duty of impartiality.
Practical relevance: Distinguish technical assistance from court expert evidence.
Framework and scope: Article L.615-5 French IP Code and Article 6(1) ECHR. French framework. UPC requirements remain distinct.
Official source · Moyen principal et dispositif / Main appeal and operative part
Last documentary verification: 2026-10-12.
Abraxis Bioscience v Comptroller General of Patents (CJEU, C-443/17, 2019)
C-443/17 · ECLI:EU:C:2019:238
The authorisation for a new formulation of an old active ingredient cannot be the first authorisation of the product under Article 3(d) where that ingredient has already been authorised. The Neurim exception does not extend to formulations.
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Warner-Lambert v Generics
Technical field: Pharmaceuticals
Issues: Sufficiency / enablement · Second medical use · Validity
[2018] UKSC 56 · UK Supreme Court · official full text
Supreme Court appeal · Pregabalin · second medical use
The majority held claims 1 and 3 insufficient: the specification did not support the claimed use for neuropathic pain. The judges differed on the reasoning underlying their alternative infringement analysis.
Analytical focus : Sufficiency · second medical use
Scope and limitation : The separate infringement opinions must not be presented as one unanimously adopted test.
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Source type: official full text, [2018] UKSC 56, 14 November 2018. Opened and checked on 3 October 2026.
§ 15, §§ 48 to 51
Legal glossary · Related analysis · Our practice
Legal framework: UK Patents Act 1977, section 72(1)(c)
Teva UK and Others v Gilead Sciences (CJEU, C-121/17, 2018)
C-121/17 · ECLI:EU:C:2018:585
A combination of active ingredients not expressly claimed is protected under Article 3(a) if the claims relate to it necessarily and specifically: it must necessarily fall under the invention and each ingredient must be specifically identifiable, at the filing or priority date.
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Incyte v Szellemi Tulajdon Nemzeti Hivatala (CJEU, C-492/16, 2017)
C-492/16 · ECLI:EU:C:2017:995
A first authorisation date fixed without regard to Seattle Genetics is incorrect. Under Article 18 of Regulation 469/2009 the holder may obtain rectification of the certificate’s duration for as long as it has not expired.
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Merck Sharp & Dohme v Teva Pharma (HR, 15/04934, 2017)
15/04934 · ECLI:NL:HR:2017:2807
All Swiss-type claims, subgroup claims included, are subject to the same test for direct infringement, which a carve-out alone does not generally defeat, and may be indirectly infringed. The appeal judgment was set aside and the case remitted.
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Actavis v Eli Lilly (UKSC, [2017] UKSC 48, 2017)
[2017] UKSC 48 ·
Forms of pemetrexed other than the disodium salt directly infringe the patent as equivalents under the reformulated Improver questions. The prosecution history does not prevent that result.
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Raltegravir (BGH, X ZB 2/17, 2017)
X ZB 2/17 · ECLI:DE:BGH:2017:110717UXZB2.17.0
Provisional permission to use the raltegravir patent under Sections 24 and 85 PatG is upheld: the licensing efforts were sufficient and the public interest urgently required continued supply for several patient groups.
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Dutch State v Warner Lambert Company (Gerechtshof Den Haag, 200.185.962/01, 2017)
200.185.962/01 · ECLI:NL:GHDHA:2017:1935
The Court of Appeal referred three questions on Article 11 of Directive 2001/83 to the Court of Justice: the effect of a carve-out notice on the marketing authorisation and whether the authority may publish the generic’s full label, provisionally, such publication is not infringement.
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Sun Pharmaceutical Industries v Novartis (HR, 15/01813, 2017)
15/01813 · ECLI:NL:HR:2017:692
Sun’s appeal was dismissed: priority was validly claimed and, the question of principle on indirect infringement of Swiss-type claims not being in issue, a generic company knowing its product would be dispensed for osteoporosis had to prove the steps it took to prevent this.
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Unwired Planet v Huawei (EWHC (Pat), [2017] EWHC 711 (Pat), 2017)
[2017] EWHC 711 (Pat), HP-2014-000005 ·
Birss J held that only a worldwide licence is FRAND between Unwired Planet and Huawei, set its rates (a 0.062% benchmark for 4G handsets, 0.052% in major markets), rejected the abuse of dominance case and held that an injunction should be granted as Huawei would not take that licence.
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GPRS SEP holder v distributors of a handset group (OLG Düsseldorf, I-15 U 66/15, 2017)
I-15 U 66/15 · ECLI:DE:OLGD:2017:0330.I15U66.15.00
Absent a non-discriminatory FRAND offer by the patentee to willing defendants, destruction and recall are dismissed for the time being. Damages are limited to a FRAND royalty.
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Archos v Philips (Rechtbank Den Haag, HA ZA 16-206, 2017)
C/09/505587 / HA ZA 16-206 · ECLI:NL:RBDHA:2017:1025
Archos failed to show either that Philips’s offer of USD 0.75 per product for its UMTS and LTE portfolio was not FRAND or that its own counter-offer of about 7 cents was, its declaratory claims were dismissed.
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Bristol-Myers Squibb v Isenbruck Bösl Hörschler and others (EPO, T 488/16, 2017)
T 488/16 · ECLI:EP:BA:2017:T048816.20170201
A bare assertion of activity without data did not make dasatinib’s effect plausible at filing. Post-published evidence was disregarded, inventive step denied and the referral to the Enlarged Board refused.
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Fujifilm Kyowa Kirin Biologics v AbbVie Biotechnology (EWCA, [2017] EWCA Civ 1, 2017)
[2017] EWCA Civ 1 (A3 2016 1199 and A3 2016 3772) ·
Nothing in principle bars an Arrow declaration that a product was old or obvious at a given date. Its grant is discretionary, and FKB’s claims were not struck out.
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Pemetrexed (BGH, X ZR 29/15, 2016)
X ZR 29/15 · ECLI:DE:BGH:2016:140616UXZR29.15.0
The rule excluding equivalence where only one of several disclosed options is claimed does not apply where the patent discloses a single embodiment and does not name the substituted salt. The Düsseldorf judgment is set aside and the case remitted.
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Sisvel v Archos (JM Barcelona, 133/2016, 2016)
Medidas cautelares previas 133/2016 (Roj: AJM B 22/2016) · ECLI:ES:JMB:2016:22A
The ex parte interim measures sought on the eve of the Mobile World Congress were refused for lack of urgency after years of tolerated use and as disproportionate to an aim of obtaining a royalty.
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Seattle Genetics v Österreichisches Patentamt (CJEU, C-471/14, 2015)
C-471/14 · ECLI:EU:C:2015:659
The date of the first marketing authorisation in the Union under Article 13(1) is determined by EU law. It is the date on which the authorisation decision was notified to its addressee.
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Microsoft v Motorola (9th Cir., No. 14-35393, 2015)
No. 14-35393 (D.C. Nos. 2:10-cv-01823-JLR and 2:11-cv-00343-JLR) ·
The Ninth Circuit affirmed the USD 14.52m award against Motorola: its injunction actions on standard essential patents could breach the duty of good faith arising from its RAND commitments, and Microsoft’s defence costs were recoverable.
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Huawei v ZTE
Technical field: Telecommunications
Issues: FRAND negotiations · Injunctions and provisional measures · Security
C-170/13 · ECLI:EU:C:2015:477 · CJEU · Fifth Chamber · full-text reproduction
Preliminary ruling · Telecommunications / SEP
Article 102 TFEU constrains injunction proceedings by a dominant SEP owner with a FRAND undertaking. The judgment addresses notice, a specific offer following willingness, diligent response, counter-offers and security where applicable.
Analytical focus : Negotiation framework · Article 102 TFEU
Scope and limitation : The CJEU interprets EU law, it does not itself grant the national injunction or set a FRAND rate.
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Source type: full text reproduced by WIPO Lex. Official full text: EUR-Lex, CELEX 62013CJ0170, ECLI:EU:C:2015:477, judgment of 16 July 2015, Fifth Chamber. Sources opened and checked on 3 October 2026.
§§ 60 to 71, dispositif / operative part
Legal glossary · Related analysis · Our practice
Legal framework: Article 102 TFUE / TFEU
Forsgren v Österreichisches Patentamt (CJEU, C-631/13, 2015)
C-631/13 · ECLI:EU:C:2015:13
Covalent binding of an active ingredient to other active ingredients does not in principle preclude an SPC, but no SPC may be granted where the substance’s effect falls outside the authorised indications, and a conjugated carrier protein is an active ingredient only if it has its own effect covered by those indications.
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International Stem Cell Corporation v Comptroller General of Patents (CJEU, C-364/13, 2014)
C-364/13 · ECLI:EU:C:2014:2451
An unfertilised human ovum stimulated by parthenogenesis is not a human embryo within Article 6(2)(c) of Directive 98/44 if, on current science, it lacks the inherent capacity of developing into a human being, which is for the national court to determine.
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Ericsson v D-Link (Fed. Cir., 773 F.3d 1201, 2014)
2013-1625, -1631, -1632, -1633, 773 F.3d 1201 ·
The royalty for a RAND-encumbered standard essential patent must reflect the value of the invention, excluding the value of the standard and of standardisation, and the jury must be instructed on the actual commitment given. The damages award was vacated and remanded.
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ZTE v Vringo (Rechtbank Den Haag, KG ZA 14-870, 2014)
C/09/470109 / KG ZA 14-870 · ECLI:NL:RBDHA:2014:13639
A FRAND undertaking does not, absent special circumstances, bar a seizure based on an essential patent. As ZTE made no offer before the measure, a breach by Vringo was not plausible and lifting was refused.
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Novartis v Sanofi-Aventis France and others (Cass. com., 13-10.189, 2014)
13-10.189 · ECLI:FR:CCASS:2014:CO00758
Whether the circumstances require an ex parte provisional prohibition is for the lower courts to assess. They do not where, with the SPC expiring seventeen days later, urgent inter partes proceedings remained possible and damages could compensate the harm.
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Samsung v Apple (IP High Court, 2013 (Ne) 10043, 2014)
2013 (Ne) 10043 (first instance: Tokyo District Court, 2011 (Wa) 38969) ·
The court held Samsung’s standard essential patent valid and infringed but capped damages at the FRAND royalty of JPY 9,955,854, any excess being an abuse of right absent proof that Apple was unwilling to take a FRAND licence.
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Samsung, UMTS standard essential patents (European Commission, AT.39939, 2014)
AT.39939. C(2014) 2891 final ·
The Commission makes binding for five years Samsung’s commitments not to seek EEA injunctions on its mobile standard essential patents against a licensee that accepts a negotiation of up to twelve months followed by determination of FRAND terms by a court (Patents Court or UPC) or an arbitrator.
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Motorola, GPRS standard essential patents (European Commission, AT.39985, 2014)
AT.39985. C(2014) 2892 final ·
Motorola infringed Article 102 TFEU by seeking and enforcing in Germany a GPRS SEP injunction against Apple, a licensee that was not unwilling, from 4 October 2011 to 29 May 2012, no fine is imposed.
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Merck Canada v Accord Healthcare (CJEU, C-555/13, 2014)
C-555/13 · ECLI:EU:C:2014:92
Article 13, read with recital 9, precludes the holder of a patent and an SPC from relying on the full term of the certificate where it would confer more than 15 years of exclusivity from the first MA in the Union.
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Georgetown University v Octrooicentrum Nederland (CJEU, C-484/12, 2013)
C-484/12 · ECLI:EU:C:2013:828
Article 3(c) does not preclude the holder of an SPC for a combination of active ingredients from obtaining, on the same patent, an SPC for one of those ingredients protected as such by that patent.
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Eli Lilly v Human Genome Sciences (CJEU, C-493/12, 2013)
C-493/12 · ECLI:EU:C:2013:835
Article 3(a) does not require a structural formula: an active ingredient covered by a functional definition may be protected if the claims, read in the light of the description, relate to it implicitly but necessarily and specifically.
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Actavis v Sanofi (CJEU, C-443/12, 2013)
C-443/12 · ECLI:EU:C:2013:833
A proprietor who has obtained an SPC for an innovative active ingredient may not obtain, on the same patent and a later MA, a second SPC for a combination of that ingredient with one not protected as such.
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Astrazeneca v Comptroller General of Patents (CJEU, C-617/12, 2013)
C-617/12 · ECLI:EU:C:2013:761
In the EEA context, a Swissmedic authorisation automatically recognised in Liechtenstein is the first authorisation under Article 13(1) if it predates the other authorisations for the product, regardless of the EMA’s refusal or the suspension of the Swiss authorisation.
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Escitalopram (HR, 12/00888, 2013)
12/00888 · ECLI:NL:HR:2013:BZ4115
A known substance that no known process could produce may be protected by a product patent if the claimed process makes it available for the first time in an inventive way. The burden of proving lack of inventive step lies on the invalidity claimant. The appeal judgment was set aside and the case remitted.
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Novartis v Union of India (Supreme Court of India, Civil Appeals 2706-2716/2013, 2013)
Civil Appeal Nos. 2706-2716 of 2013, avec Civil Appeal No. 2728 of 2013 et Civil Appeal Nos. 2717-2727 of 2013 ·
Imatinib mesylate, known from the Zimmermann patent, is not an invention, and its beta crystalline form, a new form of a known substance, shows no enhanced therapeutic efficacy under section 3(d), the refusal of the patent is upheld.
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AstraZeneca v Commission (CJEU, C-457/10 P, 2012)
C-457/10 P · ECLI:EU:C:2012:770
Misleading representations to patent offices to obtain SPCs and the deregistration of MAs without objective justification to obstruct generics and parallel imports are abuses of a dominant position. The appeal and cross-appeals are dismissed.
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Neurim v Comptroller-General of Patents (CJEU, C-130/11, 2012)
C-130/11 · ECLI:EU:C:2012:489
An earlier veterinary MA for the same active ingredient does not preclude an SPC for a different application covered by its own MA, if it falls within the protection of the basic patent. The first MA is assessed within the limits of that protection.
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Merck Sharp & Dohme v Deutsches Patent- und Markenamt (CJEU, C-125/10, 2011)
C-125/10 · ECLI:EU:C:2011:812
An SPC may be granted where less than five years separate the basic patent application from the first MA. Its negative term is not rounded up to zero, and the paediatric extension runs from patent expiry less that negative term.
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Medeva v Comptroller General of Patents (CJEU, C-322/10, 2011)
C-322/10 · ECLI:EU:C:2011:773
Article 3(a) precludes an SPC for active ingredients not specified in the wording of the claims of the basic patent. Article 3(b) allows an SPC for the claimed combination even where the authorised product contains other active ingredients.
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Human Genome Sciences v Eli Lilly (UKSC, [2011] UKSC 51, 2011)
[2011] UKSC 51 ·
The Neutrokine-α patent satisfies Article 57 EPC: its plausible membership of the TNF ligand superfamily suffices to show a use, the cross-appeal on insufficiency was dismissed and the case remitted.
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Brüstle v Greenpeace (CJEU, C-34/10, 2011)
C-34/10 · ECLI:EU:C:2011:669
A human embryo includes any human ovum from fertilisation and any non-fertilised ovum obtained by nuclear transfer or parthenogenesis. An invention whose implementation requires the prior destruction of human embryos is excluded from patentability, including for research purposes.
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Samsung v Apple (Rechtbank Den Haag, KG ZA 11-818, 2011)
398308 / KG ZA 11-818, 398332 / KG ZA 11-819, 400246 / KG ZA 11-936, 400247 / KG ZA 11-937 · ECLI:NL:RBSGR:2011:BT7610
A FRAND undertaking is not an offer the implementer can accept but obliges the patentee to negotiate on FRAND terms. As Samsung’s royalty demand departed far from that duty, the preliminary injunction against Apple was refused.
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The Scripps Research Institute, disclosed disclaimers (EPO, G 2/10, 2011)
G 2/10 · ECLI:EP:BA:2011:G000210.20110830
A disclaimer excluding subject-matter disclosed in the application as filed infringes Article 123(2) EPC if the subject-matter remaining in the claim is not directly and unambiguously disclosed. This calls for a technical assessment of the case.
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Monsanto Technology v Cefetra (CJEU, C-428/08, 2010)
C-428/08 · ECLI:EU:C:2010:402
Article 9 of Directive 98/44 does not protect a patented DNA sequence contained in soy meal in which it no longer performs its function. It exhaustively harmonises protection and precludes absolute national protection of the sequence, including for patents predating the directive.
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Abbott Respiratory, dosage regime (EPO, G 2/08, 2010)
G 2/08 · ECLI:EP:BA:2010:G000208.20100219
Article 54(5) EPC does not exclude patenting a known medicament for a different treatment of the same illness, even where the dosage regime is the only novel feature. Swiss-type claims are no longer available where novelty lies only in the new therapeutic use.
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G 1/07 : medical imaging and surgical methods
Technical field: Medical devices
Issues: Medical methods: exclusions · Validity
G 1/07 · ECLI:EP:BA:2010:G000107.20100215
Context: Magnetic resonance imaging using polarised xenon.
Issue and holding: A substantial invasive step requiring medical expertise and entailing substantial health risks can exclude the claimed method.
Practical relevance: Examine each step and the precise scope of the claim.
Framework and scope: Article 53(c) EPC. Informing a surgical decision alone does not exclude an imaging method. The ruling does not exclude devices.
Official source · Dispositif / Order 1-3
Last documentary verification: 2026-10-13.
Rambus (European Commission, COMP/38.636, 2009)
COMP/38.636 ·
The Commission makes binding for five years Rambus’s commitments: no royalties on SDR and DDR chips, a 1.5% cap on the unit price for later DRAM standards and declining caps for memory controllers.
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Orange-Book-Standard (BGH, KZR 39/06, 2009)
KZR 39/06 ·
A defendant to an injunction claim may rely on the patentee’s abuse of dominance in refusing a non-discriminatory licence, provided it has made an unconditional offer and behaves as a licensee by rendering accounts and paying or depositing royalties.
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Wisconsin Alumni Research Foundation (EPO, G 2/06, 2008)
G 2/06 · ECLI:EP:BA:2008:G000206.20081125
Rule 28(c) EPC applies to pending applications and forbids the patenting of products which, at the filing date, could be obtained only by destroying human embryos, even if that method is not claimed.
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Johns Hopkins University, GDF-9 (EPO, T 1329/04, 2005)
T 1329/04 · ECLI:EP:BA:2005:T132904.20050628
As the application did not make it at least plausible that GDF-9 solved the stated problem, inventive step was denied. Post-published evidence cannot be the sole basis for that showing.
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The Salk Institute for Biological Studies v Karo Bio and Astra (EPO, T 609/02, 2004)
T 609/02 · ECLI:EP:BA:2004:T060902.20041027
A therapeutic use claim is insufficiently disclosed where the patent gives only a vague indication of a possible medical use for a compound yet to be identified. Later evidence cannot remedy that insufficiency.
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COMVIK : technical and non-technical features
Technical field: Telecommunications · Electronics · Software and AI
Issues: Inventive step · Validity
T 641/00 · ECLI:EP:BA:2002:T064100.20020926
Context: Mobile telephony: a SIM card with two identities. Opposition appeal.
Issue and holding: Only features contributing to technical character can support inventive step, a non-technical aim may form part of the problem’s constraints.
Practical relevance: Identify the technical contribution of the claimed combination.
Framework and scope: Article 56 EPC. G 1/19 explains its application to simulations. These are separate cases.
Official source · Sommaire 1-2 / Headnote 1-2
G 1/19 : computer-implemented simulations · Glossary · Our practice
Last documentary verification: 2026-10-12.
Priority and the “same invention” (EPO, G 2/98, 2001)
G 2/98 · ECLI:EP:BA:2001:G000298.20010531
Priority of an earlier application is acknowledged for a claim only if the skilled person can derive its subject-matter directly and unambiguously, using common general knowledge, from the previous application as a whole.
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Eisai, second medical indication (EPO, G 5/83, 1984)
G 5/83 · ECLI:EP:BA:1984:G000583.19841205
A claim to the use of a substance for the treatment of the human or animal body by therapy cannot be granted. A patent may be granted with claims to the use of a substance for the manufacture of a medicament for a specified new and inventive therapeutic application.
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Graham v. John Deere Co.
383 U.S. 1 (1966) · Nos. 11, 37 and 43
The Court sets the framework for assessing obviousness under § 103 of the 1952 Patent Act. The court determines the scope and content of the prior art, the differences between that art and the claims, and the level of ordinary skill in the art. Secondary considerations, such as commercial success or long-felt need, may inform the analysis. Applying that test, the Court holds the Graham patent (a spring clamp for ploughs) and the Scoggin patent (a sprayer) invalid.
The three factual inquiries of Graham, supplemented by secondary considerations, remain the foundation of any US obviousness analysis, including after KSR.
The US test does not follow the EPO problem and solution approach and cannot be transposed as such to Article 56 EPC.
Official source · full text, Justia (reproduction of the U.S. Reports)
KSR International Co. v. Teleflex Inc.
550 U.S. 398 (2007) · No. 04-1350
The Court rejects the Federal Circuit’s rigid application of the “teaching, suggestion, or motivation” (TSM) test. Obviousness must be assessed flexibly, taking account of market demand, the background knowledge of the skilled person and common sense. Claim 4 of the Engelgau patent, covering an adjustable accelerator pedal combined with an electronic sensor mounted on a fixed pivot point, is held obvious and the judgment is reversed.
Read it for combinations of known elements: a predictable combination of existing elements, each used according to its established function, is in principle obvious.
The judgment loosens the obviousness inquiry without imposing a substitute method, and TSM remains a helpful but not mandatory tool.
Official source · full text, Justia (reproduction of the U.S. Reports)
Markman v. Westview Instruments, Inc.
517 U.S. 370 (1996) · No. 95-26
The Court holds that the construction of patent claims, including terms of art, is exclusively for the judge and not the jury. The Seventh Amendment does not require that question to go to a jury, as there is no historical practice to that effect, and uniform treatment of patents justifies leaving it to the judge. The patent covered an inventory control system for dry cleaners, and the meaning of the term “inventory” was disputed.
The basis for claim construction hearings (Markman hearings), which shape the timetable of US patent trials before the merits.
The judgment allocates roles between judge and jury, a question specific to US procedure, without setting the method of construction itself.
Official source · full text, Justia (reproduction of the U.S. Reports)
Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc.
574 U.S. 318 (2015) · No. 13-854
Where claim construction rests on subsidiary findings of fact, in particular those drawn from expert evidence, the court of appeals may set them aside only for clear error under Rule 52(a)(6). The ultimate construction remains a question of law reviewed de novo. The patent covered a process for manufacturing Copaxone, and the term “molecular weight” was challenged as indefinite. The Federal Circuit’s judgment is vacated and the case remanded.
Trial court findings on how the skilled person reads the patent become harder to disturb on appeal.
The rule applies only to subsidiary facts drawn from extrinsic evidence, and most of the construction is still reviewed de novo.
Official source · full text, Justia (reproduction of the U.S. Reports)
Phillips v. AWH Corp.
415 F.3d 1303 (Fed. Cir. 2005) (en banc) · Nos. 03-1269, 03-1286
Sitting en banc, the Federal Circuit sets the method of claim construction. Terms bear the ordinary meaning they have for the skilled person reading the patent as a whole, the specification being the single best guide, the prosecution history able to inform it, and dictionaries or expert evidence coming second. The court rejects the dictionary first approach (Texas Digital) and holds that the term “baffles” in a patent for steel wall panels is not confined to angled structures. The judgment of non-infringement is reversed and the case remanded.
The standard authority in any US claim construction argument: intrinsic evidence (claims, specification, prosecution history) comes first, extrinsic evidence afterwards.
The judgment leaves open the question of deference owed to the trial court, later settled by Teva v. Sandoz (2015).
Official source · full text, Public.Resource.Org (F.3d)
Warner-Jenkinson Co. v. Hilton Davis Chemical Co.
520 U.S. 17 (1997) · No. 95-728
The Court upholds the doctrine of equivalents under the 1952 Patent Act. Equivalence is assessed element by element, objectively and as at the time of infringement, the infringer’s intent being irrelevant. Where the patentee cannot explain the reason for a narrowing amendment, it is presumed to relate to patentability and bars equivalents for that element. The patent covered an ultrafiltration process for purifying dyes at a pH of about 6.0 to 9.0, the accused process operating at pH 5.0, and the case is remanded to the Federal Circuit.
The element by element rule and the presumption attached to unexplained amendments frame any defence to a claim of equivalence.
The reach of prosecution history estoppel is refined later in Festo (2002).
Official source · full text, Justia (reproduction of the U.S. Reports)
Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co.
535 U.S. 722 (2002) · No. 00-1543
A narrowing amendment made to satisfy any requirement of the Patent Act, including § 112, may give rise to prosecution history estoppel. The estoppel does not bar every equivalent of the amended element: the presumption of surrender is rebutted if the equivalent was unforeseeable, if the rationale of the amendment bears only a tangential relation to it, or if the skilled person could not reasonably have claimed it literally. The patent covered a magnetic rodless cylinder. The Federal Circuit’s complete bar is set aside and the case remanded.
Read the file history before asserting any equivalent, since every narrowing amendment raises a presumption of surrender that the patentee must rebut.
A mechanism specific to US law, whereas the weight given to the prosecution history in claim interpretation varies across European courts.
Official source · U.S. Reports, GovInfo (official edition)
eBay Inc. v. MercExchange, L.L.C.
547 U.S. 388 (2006) · No. 05-130
The Court holds that permanent injunctions in patent cases are governed by the traditional four factor test in equity: irreparable injury, inadequacy of remedies at law, balance of hardships and the public interest. It rejects both the Federal Circuit’s general rule granting injunctions save in exceptional circumstances and the trial court’s categorical denial based on the patentee’s willingness to license and lack of commercial activity. The judgment is vacated and the case remanded to the district court.
The starting point for any injunction request in the United States, including for standard essential patents since Apple v. Motorola (2014).
The Court takes no view on whether an injunction should issue in the case, and Justice Kennedy’s concurrence only invites courts to consider licensing only business models.
Official source · official syllabus, Legal Information Institute (Cornell)
Halo Electronics, Inc. v. Pulse Electronics, Inc.
579 U.S. 93 (2016) · Nos. 14-1513 and 14-1520 (with Stryker Corp. v. Zimmer, Inc.)
The Court discards the Seagate test as inconsistent with § 284. Enhanced damages, up to treble, lie within the court’s discretion and are reserved for egregious cases of culpable behaviour, typically wilful infringement. Subjective wilfulness suffices without proof of objective recklessness, the standard of proof is the preponderance of the evidence, and appellate review is for abuse of discretion. Both Federal Circuit judgments are vacated and the cases remanded.
Culpability is measured by what the infringer knew at the time of the conduct, which gives full weight to the date on which it learnt of the patent.
Enhanced damages serve a punitive function specific to US law, foreign to the compensatory principle of French law.
Official source · U.S. Reports, GovInfo (official edition)
Mayo Collaborative Services v. Prometheus Laboratories, Inc.
566 U.S. 66 (2012) · No. 10-1150
The claims covered a method of adjusting thiopurine dosage based on the correlation between blood levels of certain metabolites and the efficacy or toxicity of treatment. The Court holds that those correlations are laws of nature and that the claimed steps (administering, determining, then the “wherein” clauses) add only well understood, routine and conventional activity. The claims are ineligible under § 101 and the Federal Circuit’s judgment is reversed.
The first step of the two stage test later applied in Alice: identify the judicial exception, then look for an inventive concept beyond conventional activity.
The judgment concerns a dosing method based on a natural correlation and does not map onto the European exclusion of diagnostic methods in Article 53(c) EPC.
Official source · full text, Justia (reproduction of the U.S. Reports)
Association for Molecular Pathology v. Myriad Genetics, Inc.
569 U.S. 576 (2013) · No. 12-398
A naturally occurring DNA segment is a product of nature and is not patent eligible merely because it has been isolated, so Myriad’s claims to the isolated BRCA1 and BRCA2 genes are invalid. Complementary DNA (cDNA), from which introns have been removed, is not naturally occurring and remains patent eligible. The Federal Circuit’s judgment is affirmed in part and reversed in part.
The line runs between discovering a natural sequence and creating a new molecule, a test to apply to any claim to a biological product.
The Court does not rule on method claims, on applications of knowledge about these genes, or on DNA whose natural order of nucleotides has been altered.
Official source · U.S. Reports, GovInfo (official edition)
Alice Corp. v. CLS Bank International
573 U.S. 208 (2014) · No. 13-298
The Court applies the two step Mayo framework to computer implemented inventions. The method, system and media claims are directed to the abstract idea of intermediated settlement, used to mitigate settlement risk, and implementing it on a generic computer does not supply the required inventive concept. All claims are held ineligible under § 101 and the en banc Federal Circuit’s judgment is affirmed.
For a software patent, the decisive question is whether the claim improves the functioning of the computer itself or another technical field.
The Court does not define an abstract idea, and the test remains distinct from the technical character requirement applied by the EPO.
Official source · full text, Justia (reproduction of the U.S. Reports)
Nautilus, Inc. v. Biosig Instruments, Inc.
572 U.S. 898 (2014) · No. 13-369
A patent is invalid for indefiniteness if its claims, read in light of the specification and prosecution history, fail to inform the skilled person about the scope of the invention with reasonable certainty. The Court rejects the Federal Circuit’s formulations (“insolubly ambiguous”, “amenable to construction”). The patent covered a heart rate monitor for exercise equipment, and the phrase “in spaced relationship with each other” was at issue. The judgment is vacated and the case remanded.
The reasonable certainty standard now governs every challenge under § 112(b).
The Court expresses no view on the validity of the patent in suit, which it leaves to the Federal Circuit.
Official source · U.S. Reports, GovInfo (official edition)
TC Heartland LLC v. Kraft Foods Group Brands LLC
581 U.S. 258 (2017) · No. 16-341
For the purposes of the patent venue statute (28 U.S.C. § 1400(b)), a domestic corporation “resides” only in its State of incorporation. The Court reaffirms Fourco Glass Co. v. Transmirra Products Corp. and holds that the amendments to § 1391 did not change that meaning. Sued in Delaware, TC Heartland, based in Indiana, obtains reversal of the Federal Circuit’s judgment.
An action against a domestic corporation lies in the district of its State of incorporation or where it has committed acts of infringement and has a regular and established place of business.
The judgment concerns corporations incorporated in the United States and does not settle the position of foreign defendants.
Official source · official slip opinion, Supreme Court of the United States
Oil States Energy Services, LLC v. Greene’s Energy Group, LLC
No. 16-712 · 138 S. Ct. 1365 (2018)
The Court holds that inter partes review (IPR) before the USPTO, created by the America Invents Act, falls within the public rights doctrine. Reconsideration by the Office of an issued patent and cancellation of claims therefore violate neither Article III of the Constitution nor the Seventh Amendment. The Federal Circuit’s judgment is affirmed, with two Justices dissenting.
IPR remains a route for challenging validity in parallel with infringement proceedings, and its constitutionality is no longer open to challenge in principle.
The Court confines its decision to the challenges raised and does not address retroactive application, due process, or the property status of patents under other constitutional clauses.
Official source · full text, Justia (slip opinion)
Microsoft Corp. v. Motorola, Inc.
No. C10-1823JLR · 2013 WL 2111217 (W.D. Wash. 25 April 2013)
After a bench trial held in November 2012, Judge Robart sets, in Microsoft’s contract action, the RAND rate for Motorola’s standard essential patent portfolios. He fixes 0.555 cents per unit for the H.264 portfolio (range 0.555 to 16.389 cents) and 3.471 cents per unit for the 802.11 portfolio (range 0.8 to 19.5 cents). The method rests on a hypothetical bilateral negotiation, with Georgia-Pacific factors adapted to the RAND commitment, account taken of hold-up and royalty stacking, and reliance on patent pools and comparable licences.
The first US judicial determination of a RAND rate, whose method was followed in In re Innovatio and whose outcome was upheld on appeal by the Ninth Circuit in 2015.
The rate serves to assess performance of the contractual RAND commitment in this dispute and does not amount to a licence imposed on the parties.
Official source · full text, WIPO Lex (WIPO) (Findings of Fact and Conclusions of Law)
In re Innovatio IP Ventures, LLC Patent Litigation
MDL No. 2303 · No. 11 C 9308 (N.D. Ill. 3 October 2013)
Judge Holderman sets the RAND rate for the nineteen Innovatio 802.11 patents in issue at 9.56 cents per Wi-Fi chip, for chips used or sold in the United States by the manufacturer parties (Cisco, Motorola Solutions, SonicWALL, Netgear and Hewlett-Packard). The royalty base is the Wi-Fi chip, Innovatio’s end product approach being rejected for want of credible apportionment. The court adapts the Microsoft v. Motorola method and rejects the licences relied on by Innovatio as not comparable.
Read it on the choice of royalty base and the apportionment of value between the standardised functionality and the product.
The rate applies only to the manufacturer parties and remains subject to patent term, limitation periods and a finding of infringement.
Official source · Memorandum Opinion, GovInfo (official publication of federal court opinions)
TCL Communication Technology Holdings, Ltd. v. Telefonaktiebolaget LM Ericsson
Nos. 8:14-cv-00341 and 2:15-cv-02370 (C.D. Cal.) · Memorandum of 8 November 2017 (Dkt. 1778), amended final judgment of 9 March 2018
After a bench trial, Judge Selna finds that Ericsson’s “Option A” and “Option B” offers were not fair and reasonable and were discriminatory, then sets FRAND rates for a worldwide licence to its 2G, 3G and 4G standard essential patents. The final judgment fixes, among other things, for handsets sold in the United States, 0.164% (2G), 0.300% (3G) and 0.450% (4G) of the net selling price, together with a release payment of USD 16,449,071 for past sales from 2007 to 2015. The method combines a modified top down approach with analysis of comparable licences.
An example of court determined worldwide FRAND rates differentiated by standard and by region, useful for weighing the top down approach against comparable licences.
The release payment, the finding that the offers were not FRAND and the prospective rates were vacated by the Federal Circuit on 5 December 2019.
Official source · full text, WIPO Lex (WIPO) (amended final judgment of 9 March 2018)
TCL Communication Technology Holdings Ltd. v. Telefonaktiebolaget LM Ericsson
943 F.3d 1360 (Fed. Cir. 2019) · Nos. 2018-1363, 2018-1380, 2018-1382, 2018-1732
The Federal Circuit holds that the release payment, which compensates for past infringement, is in substance legal relief and that Ericsson, which had not waived the right, was entitled to a jury under the Seventh Amendment. The court vacates the release payment determination, the finding that Ericsson’s offers were not FRAND and the prospective FRAND rates, all of which rested on common issues. It reverses the dismissal of the infringement claims, which are no longer moot, and remands.
Any claim seeking to quantify past use of a standard essential patent triggers a jury right, which shapes the procedural strategy of a FRAND trial in the United States.
The court does not reach Ericsson’s other challenges to the trial court’s FRAND methodology.
Official source · full text, WIPO Lex (WIPO)
HTC Corp. v. Telefonaktiebolaget LM Ericsson
12 F.4th 476 (5th Cir. 2021) · Nos. 19-40566 and 19-40643
The Fifth Circuit affirms the judgment entered on the jury verdict that Ericsson complied with its FRAND commitment to ETSI, a contractual commitment governed by French law, a point not challenged on appeal. Refusing instructions requiring apportionment based on the smallest salable patent-practicing unit was not reversible error, since an action for breach of the FRAND commitment is not a patent infringement action. The proposed non-discrimination instruction, which amounted to requiring identical terms for all licensees, is held contrary to the ETSI policy.
The non-discriminatory limb of FRAND does not impose a most favoured licensee clause, and comparable licences may establish that an offer complies.
The judgment rules on jury instructions and evidence without imposing a valuation method, and the application of French law was not contested.
Official source · full text, WIPO Lex (WIPO)
Telefonaktiebolaget LM Ericsson v. Lenovo (United States), Inc.
No. 2024-1515 (Fed. Cir. 24 October 2024)
Lenovo sought an anti-suit injunction barring Ericsson, among other things, from enforcing injunctions obtained in Colombia and Brazil on standard essential patents. Applying the Microsoft v. Motorola framework, the Federal Circuit holds that the district court erred in law by requiring the US action to result necessarily in a global cross licence. The FRAND commitment to ETSI makes the pursuit of injunctions conditional on first complying with the duty to negotiate in good faith, so the question pending before the US court is dispositive of the foreign proceedings. The denial of the anti-suit injunction is vacated and the case remanded.
A standard essential patent holder that seeks injunctions abroad without first negotiating in good faith is exposed to a US anti-suit injunction.
The court does not order the injunction, leaves the remaining requirements to the trial court and expresses no view on whether Ericsson met its negotiation obligation.
Official source · official opinion, Court of Appeals for the Federal Circuit
Apple Inc. v. Motorola, Inc.
757 F.3d 1286 (Fed. Cir. 2014) · Nos. 2012-1548, 2012-1549
On appeal from a judgment of Judge Posner (N.D. Ill., sitting by designation), the Federal Circuit rejects any per se rule against injunctions for FRAND committed patents: the eBay framework suffices, and an injunction may be justified where an infringer unilaterally refuses a FRAND royalty or unreasonably delays negotiations. The denial of an injunction on Motorola’s ’898 patent is nonetheless affirmed, as the many licences granted show that damages are adequate and negotiations were ongoing. The court also reverses the exclusion of most of the damages expert evidence.
Read it alongside Huawei v ZTE: the conduct of the prospective licensee governs access to an injunction, but through the eBay factors.
The judgment carries partial dissents by Chief Judge Rader and Judge Prost, and no injunction was granted.
Official source · full text, WIPO Lex (WIPO)
Olanzapin (BGH, X ZR 89/07, 2008)
X ZR 89/07 · BGHZ 179, 168 · GRUR 2009, 382
Hearing an appeal in nullity proceedings against the German part of European patent 454 436 (olanzapine), the Federal Court of Justice set aside the Federal Patent Court judgment of 4 June 2007 and dismissed the action. A generic chemical formula does not, as a rule, disclose each individual compound falling within it, and disclosure covers what the skilled person reads into the document as self-evident (mitlesen), without supplementing it with common general knowledge. Inventive step was also upheld, since the skilled person had no reason (Veranlassung) to make the claimed compound from the cited prior art.
Read headnotes a) to c) and paragraph 51: the choice of a starting point for inventive step must be justified, and the “closest prior art” enjoys no priority in principle.
The rule on generic formulae is framed for chemical compounds, and its transposition to other selections (ranges, parameters) depends on other decisions.
Official source · Full text, BGH decisions database (PDF)
Fischbissanzeiger (BGH, Xa ZR 138/05, 2009)
Xa ZR 138/05 · GRUR 2009, 1039
The Federal Patent Court had declared the German part of European patent 570 117 (a fish-bite indicator) void for lack of inventive step, and the Federal Court of Justice dismissed the patentee’s appeal. The skilled person is a designer experienced in developing fishing tackle, not an angler. The “closest” prior art cannot always serve as the sole starting point: the choice of one or more starting points must be justified, as a rule by the skilled person’s search for a better, or merely different, solution than the prior art offered.
The starting point is justified by the skilled person’s objective, and the EPC provides no basis for starting exclusively from the closest prior art (headnote b, building on Olanzapin).
The method differs from the problem and solution approach applied by the EPO, so arguments must be adapted when the same patent is litigated before both bodies.
Official source · Full text, BGH decisions database (PDF)
Kosmetisches Sonnenschutzmittel (BGH, X ZR 68/99, 2002)
X ZR 68/99 · GRUR 2003, 317
The Federal Patent Court had partially declared European patent 0 555 460, relating to a cosmetic sunscreen composition, void beyond the amended claims. The Federal Court of Justice dismissed the patentee’s appeal. Synergistic effects going beyond the mere sum of the effects of the components of a mixture may indicate inventive step, but where the prior art suggested the combination, an additional effect, even an unexpected and surprising one, cannot on its own establish inventive step.
A surprising effect remains a mere indicator and does not displace the inquiry into whether the combination itself was obvious.
The holding concerns combinations of known substances and assumes that the prior art suggested the combination.
Official source · Full text, BGH decisions database (PDF)
Kosmetisches Sonnenschutzmittel III (BGH, X ZR 72/08, 2011)
X ZR 72/08 · GRUR 2011, 607
The Federal Patent Court had declared the German part of European patent 815 835, covering sunscreen compositions containing in particular 4-tert-butyl-4′-methoxydibenzoylmethane, wholly void. The Federal Court of Justice dismissed the appeal of the patentee, which defended the patent as limited before the EPO (Articles 105a and 105b EPC). The inventive step inquiry does not start solely from the “problem” stated in the description: it must also be asked whether addressing another problem within the skilled person’s remit suggested the solution. A claim limited before the EPO can no more be reviewed for clarity (Article 84 EPC) than a granted claim, since there is no corresponding ground for nullity.
The technical problem is reconstructed objectively, without being confined to the wording of the description, which opens the door to attacks based on a neighbouring problem.
The refusal to review clarity follows from the closed list of nullity grounds under German law and says nothing about proceedings in which clarity may be examined.
Official source · Full text, BGH decisions database (PDF)
Fahrzeugwechselstromgenerator (BGH, X ZR 99/11, 2012)
X ZR 99/11 · BGHZ 194, 290 · GRUR 2012, 1236
The Federal Patent Court had declared the German part of European patent 1 223 660, relating to a vehicle alternator, void. The Federal Court of Justice varied that judgment and upheld claim 2 and claims 3 to 6 so far as dependent on it, because the prior art gave the skilled person no prompt towards the claimed arrangement of the two three-phase stator windings. It held that a party expert report filed on appeal is not new matter where it merely elaborates first-instance submissions, that an attack based on a document already on file is new where the technical teaching relied on had not been argued, and that the nullity claimant need not run every conceivable line of argument.
A nullity appeal is prepared at first instance, since the line between permitted elaboration and new matter turns on the precise technical teaching drawn from each document.
The admissibility rules discussed concern nullity appeals governed by Section 117 PatG and Sections 529 and 531 ZPO.
Official source · Full text, BGH decisions database (PDF)
Gestricktes Schuhoberteil (BGH, X ZR 119/14, 2017)
X ZR 119/14 · ECLI:DE:BGH:2017:310117UXZR119.14.0 · GRUR 2017, 498
The Federal Patent Court had declared the German part of European patent 1 571 938, covering an article of footwear with a knit upper, void as obvious over an old German Auslegeschrift (DE 1 084 173). The Federal Court of Justice dismissed the patentee’s appeal. Whether a document is a realistic starting point cannot be inferred from its substantive closeness to the claimed solution alone, especially for very old prior art, but where a solution known for many years already contains all the essential elements of the invention, treating it as outside the range of possible starting points calls for particularly careful scrutiny.
The age of a citation is not enough to discard it: the patentee must explain why the skilled person would not have taken it up at the priority date.
The judgment addresses the choice of starting point, while the motivation to modify the chosen citation remains a case by case assessment.
Official source · Full text, BGH decisions database (PDF)
Schneidmesser I (BGH, X ZR 168/00, 2002)
X ZR 168/00 · BGHZ 150, 149 · GRUR 2002, 515
The exclusive licensee of German patent 37 19 721 (a cutting blade for rotary paper cutting machines) sued over a cutting tool whose blades were angled at 8° 40′ to the radius, whereas the claim required an angle between 9° and 12°. The Federal Court of Justice dismissed the defendant’s appeal on points of law and upheld the finding of infringement by equivalence made by the Higher Regional Court of Karlsruhe. It set out the three-question test: the variant solves the problem underlying the invention with modified but objectively equivalent means, the skilled person can find it using common knowledge, and the skilled person’s reasoning is so oriented to the meaning of the claim that the variant is regarded as an equivalent solution.
The three Schneidmesser questions still structure the German equivalence analysis, and numerical values in a claim remain open to construction.
Where the skilled person recognises no different value as equally effective in the sense of the claim, protection does not extend beyond the claim’s meaning (headnote b).
Official source · Full text, BGH decisions database (PDF)
Formstein (BGH, X ZR 28/85, 1986)
X ZR 28/85 · BGHZ 98, 12 · GRUR 1986, 803
The founding judgment of the so-called Formstein defence (Formstein-Einwand): a defendant accused of infringement by equivalence may argue that the accused embodiment, in light of the prior art, is not a patentable invention. The Federal Court of Justice also held that claim construction serves not only to remove ambiguities but to explain the technical terms used and the meaning and scope of the invention. The Tenth Civil Senate still refers to the defence by this name, for example in Wärmetauscher (2016).
The defence targets the accused embodiment itself: the defendant must show that the variant was known or obvious over the prior art.
The defence is available only against infringement by equivalence, the validity of the patent itself being a matter for nullity proceedings before the Federal Patent Court.
Reference source · Reference entry, dejure.org (predates the BGH online database)
Okklusionsvorrichtung (BGH, X ZR 16/09, 2011)
X ZR 16/09 · BGHZ 189, 330
The proprietor of European patent 808 138 (an intravascular occlusion device made of braided metal fabric) sued over a device with a single clamp at the proximal end, the other end being closed by folding the strands back, whereas the claim required clamps at both ends. The Federal Court of Justice set aside the judgment of the Higher Regional Court of Düsseldorf and dismissed the action. Parts of the description that find no expression in the claims are not protected, and where the description discloses several ways of achieving a technical effect but only one is claimed, using another does not, as a rule, infringe by equivalence.
Before arguing equivalence, check whether the claim makes a selection among variants described in the specification (Auswahlentscheidung), since that selection in principle excludes equivalence for the variants left out.
The Court of Appeal of England and Wales had assessed the same dispute differently, and the judgment expressly addresses that divergence.
Official source · Full text, BGH decisions database (PDF)
Wärmetauscher (BGH, X ZR 114/13, 2016)
X ZR 114/13 · ECLI:DE:BGH:2016:100516UXZR114.13.0
The proprietor of a patent for an auxiliary heater for open-top vehicles such as convertibles, directing warm air towards the occupants’ neck and shoulders, had lost before the Regional Court of Mannheim and the Higher Regional Court of Karlsruhe. The Federal Court of Justice found infringement by an equivalent embodiment, rejected the Formstein defence and granted an injunction. It refused the requested use-up period (Aufbrauchfrist), which is available only where immediate enforcement would, owing to special circumstances, amount to disproportionate hardship contrary to good faith, and neither the minor role of the component nor the defendants’ success below met that test.
The judgment sets a very high threshold for any softening of injunctive relief, relying on Section 242 BGB and Article 3(2) of Directive 2004/48.
Section 139(1) PatG, as amended in 2021, now expressly provides for a disproportionality exception, and the judgment must be read in light of that provision.
Official source · Full text, BGH decisions database (PDF)
Gemeinkostenanteil (BGH, I ZR 246/98, 2000)
I ZR 246/98 · BGHZ 145, 366
In a dispute over infringement of a registered design (Geschmacksmuster) for a ring, the First Civil Senate set aside the judgment of the Higher Regional Court of Düsseldorf and remitted the case. Where damages take the form of an account of the infringer’s profits, overheads may be deducted only if, exceptionally, they are directly attributable to the infringing articles. Nor may the infringer argue that its profit stems in part from its own marketing efforts.
The infringer’s account is contested item by item, and only costs directly attributable to the infringing products are deductible.
Handed down in design law, the judgment is relied on by the Tenth Civil Senate in patent cases, notably in Spannungsversorgungsvorrichtung (2019).
Official source · Full text, BGH decisions database (PDF)
Spannungsversorgungsvorrichtung (BGH, X ZR 109/16, 2019)
X ZR 109/16 · ECLI:DE:BGH:2019:260319UXZR109.16.0
The proprietor of European patent 881 145 (a power supply device, which the defendant supplied in particular to aircraft seat manufacturers) pursued acts for which the damages claim was time-barred. The Federal Court of Justice dismissed the defendant’s appeal on points of law: even after limitation, the infringer must surrender the profit made from the infringement under the rules on unjust enrichment (Section 141, second sentence, PatG and Section 852 BGB). It must therefore render account of that profit, its production costs and the advertising devoted to the infringing product.
Limitation of the damages claim does not bar disgorgement of the infringer’s profit, which keeps the account of profits relevant for older acts.
The holding concerns the residual claim after limitation (Restschadensersatz) and presupposes a profit obtained at the proprietor’s expense within the meaning of Section 852 BGB.
Official source · Full text, BGH decisions database (PDF)
Ball Spline (Supreme Court of Japan, 1994 (O) 1083, 1998)
1994 (O) No. 1083 · 平成6年(オ)第1083号
The holder of patent No. 999139 (an infinite sliding ball spline shaft bearing) claimed damages, and the Tokyo High Court had found infringement. The Third Petty Bench quashed and remanded. A difference from the claim does not preclude infringement where five conditions are met: the differing part is not essential, the substitution preserves the purpose and effect of the invention, it was easy for the skilled person at the time of the acts, the product is neither identical to nor easily conceivable from the prior art at filing, and no special circumstance, such as intentional exclusion during prosecution, stands in the way. The lower court had not examined the relationship between the product and the prior art at filing.
The five Ball Spline requirements remain the framework for equivalence (均等論) in Japan, the fifth having been clarified by the 2017 Maxacalcitol judgment.
The judgment sets the framework without deciding equivalence on the merits, the case having been remanded to the Tokyo High Court.
Official source · English translation, Courts in Japan website (PDF)
Maxacalcitol (Supreme Court of Japan, 2016 (Ju) 1242, 2017)
2016 (Ju) No. 1242 · 平成28年(受)第1242号 · Minshu vol. 71, no. 3
Chugai, holder of patent No. 3310301 covering synthesis intermediates and a process for producing compounds containing maxacalcitol, had obtained from the IP High Court Grand Panel (25 March 2016, 2015 (Ne) 10014) an injunction based on equivalence against DKSH Japan and other companies. The Second Petty Bench dismissed the final appeal. The mere fact that the applicant did not claim a structure it could easily have conceived at filing does not amount to intentional exclusion under the fifth Ball Spline requirement. Exclusion is found only where it is objectively and outwardly apparent that the applicant, aware that the structure could be substituted, refrained from claiming it.
Narrow drafting is not, on its own, a waiver of equivalence, since intentional exclusion must appear from objective and outward indications.
The judgment addresses only the fifth requirement and rests on the lower court’s findings on the other four.
Official source · English translation, Courts in Japan website (PDF)
Pravastatin Sodium (Supreme Court of Japan, 2012 (Ju) 1204, 2015)
2012 (Ju) No. 1204 · 平成24年(受)第1204号 · Minshu vol. 69, no. 4
The holder of patent No. 3737801 (pravastatin sodium substantially free of pravastatin lactone and epipravastatin, defined by its process of preparation) sued over a medicine made without step a) of the claimed process. The IP High Court (27 January 2012) had limited the claim to products made by that process. The Second Petty Bench quashed and remanded: a product-by-process claim covers products having the same structure and characteristics as the product made by the recited process. Such a claim meets the clarity requirement (Article 36(6)(ii)) only where it was impossible, or utterly impractical, to define the product directly by its structure or characteristics at filing.
Every product-by-process claim should be reviewed for clarity, since justifying why the product could not be defined otherwise becomes a validity issue.
The case was remanded to the IP High Court, and the judgment carries a concurring opinion and a separate opinion.
Official source · English translation, Courts in Japan website (PDF)
Anti-allergic Eye Drop (Supreme Court of Japan, 2018 (Gyo-Hi) 69, 2019)
2018 (Gyo-Hi) No. 69 · 平成30年(行ヒ)第69号
Patent No. 3068858 protects an eye drop applying a known oxepin derivative to the stabilisation of human conjunctival mast cells to treat allergic eye diseases. In an action against the dismissal of an invalidation request, the IP High Court had denied any unpredictable and remarkable effect merely because other compounds of comparable effect were known at the priority date. The Third Petty Bench quashed and remanded: the court had to ask whether the effect was one the skilled person could not have predicted from the claimed structures and whether it remarkably exceeded what those structures led one to expect.
An unpredictable and remarkable effect (予測できない顕著な効果) is measured against what the skilled person could expect from the claimed structure, and the existence of other compounds of comparable efficacy is not enough to deny it.
The judgment censures a method of assessment without itself ruling on inventive step, which was remanded to the IP High Court.
Official source · English translation, Courts in Japan website (PDF)
Samsung v Apple Japan, preliminary injunction (IP High Court, 2013 (Ra) 10007, 2014)
2013 (Ra) No. 10007 and 2013 (Ra) No. 10008 · 平成25年(ラ)第10007号
Samsung, holder of patent No. 4642898, declared essential to the UMTS standard and subject to a FRAND undertaking to ETSI, sought a preliminary injunction against Apple Japan’s products. The Grand Panel dismissed the appeal against the refusal: the products fell within the patent, but seeking an injunction was an abuse of rights (Article 1(3) of the Civil Code) once the defendant proved the FRAND declaration and its willingness to take a FRAND licence. Apple had repeatedly made royalty proposals with a stated basis of calculation and taken part in intensive negotiations.
In Japan, an injunction based on a FRAND-encumbered standard essential patent gives way to proof of the implementer’s willingness, and unwillingness is found only after rigorous scrutiny.
A preliminary injunction ruling, which complements the judgment handed down the same day on damages (2013 (Ne) 10043).
Official source · Summary and full text in English, IP High Court (PDF)
Pyrimidine Derivatives (IP High Court, 2016 (Gyo-Ke) 10182, 2018)
2016 (Gyo-Ke) No. 10182 and No. 10184 · 平成28年(行ケ)第10182号
Nippon Chemiphar and a second claimant challenged the Japan Patent Office decision dismissing their request to invalidate Shionogi’s patent No. 2648897 (pyrimidine derivatives, rosuvastatin), with AstraZeneca intervening in support of Shionogi. The Grand Panel held that standing survived the expiry of the patent, absent circumstances ruling out any exposure to damages, restitution or criminal liability, and then dismissed the claims. Where a publication describes a compound by a generic formula with an enormous number of alternatives, a specific alternative can be extracted as a cited invention only if there is a reason to select it positively or preferentially, which was lacking for an alkylsulfonyl group among more than 20 million alternatives.
A citation framed as a generic formula supplies the missing feature only if the publication itself gives a reason to select the relevant alternative.
The standing analysis applies the law in force before the 2014 amendment (Act No. 36), which restricted invalidation requests to persons with an interest.
Official source · Summary and full text in English, IP High Court (PDF)
Carbon Dioxide-Containing Viscous Compositions (IP High Court, 2018 (Ne) 10063, 2019)
2018 (Ne) No. 10063 · 平成30年(ネ)第10063号
Medion Research Laboratories, holder of patents No. 4659980 and No. 4912492 (carbon dioxide-containing viscous compositions), had obtained from the Osaka District Court part of the damages claimed against makers of carbonate cosmetic packs. The Grand Panel dismissed the defendants’ appeal. The infringer’s profit under Article 102(2) is its marginal profit, deducting only the additional costs directly related to the infringing products, with the burden of proof on the patentee, whereas the infringer must prove circumstances rebutting the presumption. The royalty under Article 102(3) is in principle calculated on sales, having regard in particular to actual or industry rates, the value of the patent, its contribution to sales and the competitive relationship between the parties.
The judgment gives Article 102(2) and (3) an explicit method, with lists of rebuttal and rate-setting factors that can be deployed directly.
Article 102(1) (lost profits based on the patentee’s own sales) is not addressed here, the Grand Panel having examined it in 2020 in the beauty instrument case.
Official source · Summary and full text in English, IP High Court (PDF)
MTG v Five Stars, beauty instrument (IP High Court, 2019 (Ne) 10003, 2020)
2019 (Ne) No. 10003 · 平成31年(ネ)第10003号
MTG, holder of patents No. 5356625 and No. 5847904 for a roller beauty instrument, claimed damages from Five Stars under Article 102(1). The Grand Panel upheld the injunction and varied the Osaka District Court judgment on quantum. The patentee’s product need only compete with the infringing product, profit per unit means marginal profit, the ability to work may be potential, for instance through subcontracting, and the infringer must prove the circumstances that would have prevented the patentee’s sales. The presumption covering the whole marginal profit was rebutted to the extent of about 60 % because the patented feature was only part of the product.
The contribution of the patented feature enters the Article 102(1) calculation as a partial rebuttal of a factual presumption, which makes it the core of the quantum debate.
The 60 % figure reflects the facts of the case and is not a general rule.
Official source · Summary and full text in English, IP High Court (PDF)
Dwango v FC2 (Supreme Court of Japan, 2023 (Ju) 2028, 2025)
2023 (Ju) No. 2028 · 令和5年(受)第2028号
Dwango, holder of patent No. 6526304 (a comment distribution system for videos), alleged that FC2, a US company, distributed files from servers in the United States to users’ terminals in Japan. The IP High Court Grand Panel (26 May 2023, 2022 (Ne) 10046) had held that creating the system amounted to “production” (Article 2(3)(i)) and granted an injunction and damages. The Second Petty Bench dismissed the final appeal: building a system that combines terminals in Japan with servers abroad is production, given that it is triggered automatically when users access the service, that the result of the processing is displayed on those terminals and that nothing suggests the patentee suffers no economic effect.
A networked system partly located outside Japan can be “produced” in Japan, on an overall assessment focused on where the effect of the invention materialises and on the economic impact on the patentee.
The holding is expressly tied to the circumstances of the case, and the Court ruled the same day, in a separate judgment (2023 (Ju) 14 and 15), on the distribution of programs from abroad.
Official source · Supreme Court case page and full text (Japanese)
Tokai Ika v a physician (IP High Court, 2023 (Ne) 10040, 2025)
2023 (Ne) No. 10040 · 令和5年(ネ)第10040号
Tokai Ika, holder of patent No. 5186050 for a breast augmentation composition combining autologous plasma, basic fibroblast growth factor (b-FGF) and a lipid emulsion, claimed damages from a physician who prepared that agent at a cosmetic clinic under the physician’s management. The Grand Panel reversed the Tokyo District Court and ordered the physician to pay JPY 15,032,196. A product invention using material taken from a human body and intended to be returned to it does not breach the industrial applicability requirement, and the composition falls outside the Article 69(3) exception for medicines prepared on prescription by mixing two or more medicines.
A physician who manufactures the patented composition from the patient’s own blood works the invention and cannot rely on the medical nature of the act alone.
The Article 69(3) exception was excluded because the composition is not a medicine made by mixing two or more medicines, which leaves its application to other preparations open.
Official source · Summary and full text in English, IP High Court (PDF)
Method
Each record starts from the text of the decision. It identifies the question decided, the test applied, the outcome and the procedural stage, then links the decision to legal questions shared by every jurisdiction. This is what allows a UPC decision, an EPO decision and a national judgment on the same point to be read side by side.
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