Washtower & Anor v Wasombouw & Ors (UPC_CFI_479/2025)
Decision date:
11 September 2025
Osborne Clarke summary
- Washtower made an application for provisional measures (including a preliminary injunction) against the defendants for infringement of its patent (EP 755), which protects a cabinet for a washing machine and the method of manufacture. The application against the first defendant (Wasombouw) was withdrawn shortly after the application was filed. The decision relates to the remaining defendants.
- The defendants argued that the patent was invalid for added matter and lack of inventive step. They also maintained that they did not infringe the patent either literally or by equivalence because the challenged embodiments comprised an L-shaped strip made of plastic and not of metal, as the claims required.
- The Hague LD was sufficiently convinced that it was more likely than not that the patent was valid. On added matter, the defendants argued that the L-shaped retaining member introduced into claim 1 during examination of the patent constituted an impermissible amendment by adding matter. The court agreed with the EPO Board of Appeal's finding that the retaining member was disclosed independently of the cover plate in the application as filed and therefore it was more likely than not that the patent was not invalid for added matter.
- There was disagreement between the parties as to which prior art was the "realistic starting point" for the inventive step analysis. The court noted that it "tended to agree" with Washtower that an assembly manual referred to as D1 was not a realistic starting point, but noted that the EPO identified it as the closest prior art document. The Hague LD said that the issue could be left undecided at this preliminary stage: irrespective of whether D1 should or should not be the realistic starting point, the court held that D1 combined with any of the other prior art documents disclosed by the defendants did not prejudice the inventiveness of the claim.
- In considering infringement, the court applied the test for equivalence adopted previously by the Hague LD in Plant-e v Arkyne and found that it was more likely than not that the defendants infringed claim 1 of the patent. With both parties referencing this test in submissions, and in the absence of any guidance from the Court of Appeal as to what doctrine of equivalence test should be applied, the court saw no reason to deviate from the test applied in Plant-e v Arkyne.
- The court then went on to consider whether the preliminary injunction was necessary, holding that it was. The court noted that the price difference was such that it would undercut Washtower's pricing, giving rise to the risk of irreparable price erosion while proceedings on the merits take place. The court also agreed with Washtower's argument that these sorts of cabinets are purchased infrequently by the consumer therefore, without the injunction there was a likely risk of serious irretrievable loss of sales and market share.
- In considering the urgency requirement, the court was sufficiently convinced that Washtower acted without undue delay despite the defendants' assertion that they could have acted on receipt of the EPO's "intention to grant". The application was filed within two months of the publication of grant of the patent, which was not an undue delay.
- Lastly, the court held that it was sufficiently convinced that Washtower's interests outweighed the defendants' in the balance of interests. The court noted that the potential damage to the defendants should the injunction be overturned was "rather limited" and further mitigated by the imposition of a security deposit, which the court ordered in the sum of €75,000 (rather than the €500,000 requested by the defendants).
- In relation to the injunction, the court would have ordered security of €25,000; however, as the court also ordered recall of infringing products, it increased the security to €75,000 because of the potentially more disruptive nature of the recall, the costs involved and the damage to reputation.
- An order for information was also granted so far as necessary to stop further infringement.
Issue
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