Nanostring v 10x Genomics (UPC_CoA_335/2023, amended by UPC_CoA_335/2023)

• At first instance in the Munich LD, Nanostring sought a preliminary injunction against 10x Genomics for alleged direct and indirect infringement of its unitary patent. The patent related to a method for detecting a plurality of analytes in a cell or tissue sample. The Munich LD had granted the preliminary injunction.
• However, the Court of Appeal overturned the Munich LD decision, rejecting Nanostring's request for the preliminary injunction.
• In doing so, the court explained that "[t]he claim is not only the starting point but the relevant basis for determining the scope of protection of a European patent under Art. 69 EPC in conjunction with the Protocol on the Interpretation of Art. 69 EPC."
• For the interpretation of a patent claim, the Court of Appeal stated that it is not only its exact wording in the linguistic sense that is decisive. The description and the drawings are always to be consulted as explanatory aids for the interpretation of the patent claim, and not only to remedy any ambiguities in the patent claim.
• When considering an application for provisional measures, a sufficient degree of certainty pursuant to Rule 211.2 RoP, in conjunction with Article 62(4) UPCA. This requires that the court considers it, on the balance of probabilities, at least more likely than not that the applicant is entitled to initiate proceedings and that the patent is infringed. A sufficient degree of certainty is lacking if the court considers it on the balance of probabilities to be more likely than not that the patent is not valid. The court confirmed that the burden of proof for establishing these factors lies with the applicant.
• In this case, the Court of Appeal found that the validity of the patent was not established with a sufficient degree of certainty for the preliminary injunction request to have been rightly raised.
• The headnote was amended in German here.

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