CUP&CINO v Alpina Coffee (UPC_CFI_182/2023)

• CUP&CINO filed an application for provisional measures for infringement of the patent that covered apparatus for production of milk foam with adjustable temperature.
• Alpina opted-out the patent after the application for interim measures had been submitted. The Vienna LD decided that the opt-out application was ineffective under Rule 5.6 RoP given that an "action" had been commenced before the UPC and an "action" includes proceedings for a preliminary injunction.
• The court also explained that the scope of protection for a EP must be based upon Article 69(1) EPC and its interpretative Protocol, together with Article 24(1)(c) UPCA. Accordingly, the scope of the protection is determined by the content of the claims, the interpretation of which much also be based on the description and drawings.
• CUP&CINO had argued that the product infringed claim 2, but the question of interpretation was raised regarding the length of the pipeline:  claim 2 did not define any mandatory specifications for length. The court decided that the challenged embodiment did not make use of the patent's teaching as the knee connection and coupling part of it, which together had a length of about 10cm, were not a section of the pipeline in accordance with the patent in suit.
• The court rejected the application on the basis that the patent was not infringed. As such, it was not necessary to weigh the parties' interests.

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