10x Genomics v Curio (UPC_CFI_463/2023)
Decision date:
30 April 2024
Osborne Clarke summary
- 10x Genomics filed a claim against Curio for infringement of its patent protecting a method and product for localised or spatial detection of nucleic acid in a tissue sample. 10x Genomics alleged that Curio's "Curio Seeker Spatial Mapping KIT", which was distributed in Germany, France, and Sweden, infringed its patent either directly or indirectly. 10x Genomics sought provisional measures, including a preliminary injunction.
- The Düsseldorf LD undertook a detailed assessment of infringement and concluded that it was more likely than not that Curio’s products would be found to make literal use of the technical teaching of claim 14 of the patent at issue. Claim 14 protected a product per se. In contrast, the court found that method claim 1 was not directly or indirectly infringed.
- When evaluating the validity of 10x Genomics' patent, the Düsseldorf LD noted “the fact that the patent at issue has not yet survived any adversarial validity proceedings does not prevent the validity of the patent from being sufficiently certain”. It further concluded that each of the validity attacks asserted did not reach the required threshold to call into question the validity of the patent.
- Curio further objected to the grant of provisional measures on the basis that 10x Genomics had not satisfied the urgency requirement and that the weighing of interests was in its favour. The court undertook a detailed analysis of both. With respect to urgency, although the court accepted that the documents on file suggested the 10x Genomics was aware of Curio's Seeker and thus of the contested embodiments, it held that this alone did not create a sufficient basis for filing an application for the ordering of provisional measures. In its view, there must be specific indications of infringing activities in at least individual UPCA contracting member states where the patent at issue is validated.
- With respect to the weighing of interests, the court noted that the degree of probability to which the court is convinced of the existence of each circumstance to be weighed up is a crucial factor. The more the convinced the court is that the rightsholder is asserting the infringement of a valid patent, the less likely other factors will stand in the way of the order. In this situation, the fact Curio was a small company with a single product line did not outweigh the strong finding of infringement and validity.
Issue
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