Aylo v DISH Technologies (UPC_CFI_198/2024)
Decision date:
28 May 2025
Osborne Clarke summary
- This decision related to a revocation action brought by Aylo in relation to the German designation of a European Patent claiming adaptive-rate content streaming and a method for streaming videos from servers for playback on a content player.
- There was a parallel infringement action relating to the same patent in the German Regional Court Munich but the decision was not available at the time the Paris CD gave its judgment. Opposition proceedings before the EPO were also pending, with a non-binding preliminary opinion having been given prior to the Paris CD's decision. DISH Technologies had requested a stay of these proceedings pending the Opposition Division's decision. The court declined to do so, noting that Aylo's interest in obtaining a timely judgment from the Paris CD and the advanced stage of proceedings outbalanced DISH's interests.
- On a procedural point, the court decided that it was entitled to, if requested, limit the scope of revocation of a European Patent to national parts validated in individual UPC members states (in this case, Germany). Article 34 UPCA sets out the general rule that decisions of the UPC shall cover the territory of the UPCA contracting member states in which a European Patent has effect. The Paris CD clarified that this provision defines the possible scope of UPC judgment but does not restrain the possibility of limiting the revocation of a European Patent to certain UPCA contracting member states.
- The court applied Abbott v Sibio and found that the patent was invalid for added matter. In particular, it found that feature 1.7 (which required "requesting streamlets of the highest quality one of the copies determined sustainable at that time") extended beyond the content of the parent application. Consequently, the court revoked the German part of the patent in issue.
- DISH submitted a series of auxiliary requests, but these were incapable of overcoming the grounds of invalidity with respect to feature 1.7.
Issue
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