Avago v Tesla (UPC_CFI_52/2023)

• This decision concerned the second set of proceedings between Avago and Tesla, there were ongoing parallel proceeding before the Hamburg LD. Avago alleged that two Tesla entities infringed its patent relating to programmable hybrid transmitters by the sale of its Model Y vehicle, which contain a radar transmitter that is alleged to make use of the patent. Tesla counterclaimed that the patent was invalid.
• The Munich LD revoked Avago's patent in its entirety for lack of novelty and its infringement action was dismissed. The court confirmed the approach to novelty set out in DexCom v Abbott. Lack of novelty requires that the subject matter of the invention is directly and unambiguously derived from the state of the art. The disclosure of the state of the art publication is what an average skilled person in the relevant field can and is allowed to know and understand from the publication. Avago's attempt to amend the patent with an auxiliary request did not alter the court's conclusion on novelty.
• The court detailed how lists of features in a patent claim are to be interpreted. The court considered that the wording of the claim was to be interpreted as “at least one of A, and at least one of B, and at least one of C”. The use of the word "and" meant that the elements must all be present, whereas the use of the word "or" would indicate that elements were in the alternative.

This analysis is based on a machine translation of a decision not available in English.