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# UPC Unfiltered, by Willem Hoyng – UPC decisions week 10, 2026

 09. März 2026  News Unified Patent Court (UPC) Hot Topic News Below, [Prof. Willem Hoyng](https://www.hoyngrokhmonegier.com/our-team/legal-experts/prof-willem-hoyng) provides his unfiltered views on the decisions that were published on the website of the Unified Patent Court (“UPC”) last week. His comments offer a unique insight into the UPC’s case law, as he chairs the Advisory Board of the UPC and participated in drafting the Rules of Procedure of the UPC.

Interested in more of this? Stay tuned and subscribe [**here**](https://mailchi.mp/8fbd8890d03b/upc-unfiltered-by-willem-hoyng) for weekly updates.

On the go, multi-tasking or just prefer to listen? “Willem Hoyng’s UPC Unfiltered AI Podcast” – your weekly, AI-generated podcast discussing Willem Hoyng’s commentary on UPC case law of last week, offers a convenient alternative. Listen on [**Spotify**](https://open.spotify.com/show/53wwzF7LNSqqouR0wzXgJD?si=ae84739b09904ee1&nd=1&dlsi=71b6a174bdbd4f32) or [**Apple Podcasts**](https://podcasts.apple.com/us/podcast/willem-hoyngs-upc-unfiltered-ai-podcast/id1806092389).





#### **2 February 2026** ***(late published)***
**Local Division Düsseldorf, HP v Shenzhen Moan**

[UPC\_CFI\_515/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/2026-02-02%20R.%20275.2%20RoP_UPC_CFI_515_2025_signed_all.pdf)

***Publication of decision***

**Facts**

1. HP obtained a preliminary injunction (“PI”) against the Chinese company Shenzhen Moan.
2. Despite efforts to this end, service of the decision could not be completed.
3. The decision was sent to Shenzhen Moan by email.
4. HP asked the Court to rule good service under R. 275.2 RoP and to order publication of the PI order on the website of the Court and to publish also this order.

**The Court**
The Court granted the request.

**Comment**

1. Now that the order has been served, Shenzhen Moan would forfeit penalty sums if it continues to sell in the UPC area. However, if there are no assets in the European Union, then you wonder what this brings to HP?
2. I think that companies like Shenzhen Moan should realize that continuing infringements in the UPC which trigger penalty payments may cause problems, not only in the European Union but also in for example the US. It seems to me very well possible that a US Court would allow the enforcement of a decision of the UPC with respect to forfeited penalty payments. So, representatives should be careful advising Chinese (or other non-UPC companies) to put their head in the sand!

#### **25 February 2026** ***(late published)***
**Local Division The Hague, GSK v Moderna**

[UPC\_CFI\_619/2025; UPC\_CFI\_1526/2025; UPC\_ CFI\_2033/2025 ](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/20260224%20Procedural%20Order%20CFI_619.2025.pdf)

***Housekeeping by JR***

**Facts**

1. These are infringement proceedings against 15 Moderna companies regarding EP 4 066 856 and EP 4 226 941.
2. Parties have made several applications. The judge-rapporteur (JR) issues a decision regarding these applications in this order.

**The JR**

1. Amendment of Claim
    GSK sought to include Moderna's newest vaccine, which is the latest update of Moderna's Spikevax vaccine. The JR allowed the amendment, noting that the requested injunction was formulated in general terms. Consequently, an amendment was actually not necessary.
2. The number of auxiliary requests
    The JR was not convinced that 51 auxiliary requests (27 against one patent and 24 against the other) is a reasonable amount. The requests were not presented in an objection-related manner, and no tabular overview was provided. A final decision on this matter will be made during the interim conference.
3. Late filed submission and arguments
    Moderna’s objections and request for a stay of proceedings were dismissed.

**Comment**

1. This is how a court should handle proceedings in the UPC. The JR engaged in active case management from day one, exactly as intended. When Divisions become too busy, active case management is no longer possible – as seen in certain German Divisions – meaning that speed and, ultimately, quality will suffer.
2. During its last meeting, the Administrative Committee made clear that the solution is not simply adding more judges to busy Divisions. A shift in the attitude of users and their representatives should be brought about instead. Users and representatives should file cases in less busy Divisions. If users and representatives do not, they must accept that they will not receive the "royal UPC treatment": they may wait well over 12 months for an oral argument, and a decision could take significantly longer than 12 to 14 months. Users have already seen recent examples from Vienna (where one can also file in German), Paris and The Hague: high-quality judgments delivered within 14 months.
3. The JR's lessons for representatives:
    1. Formulate your request for an injunction in a general way (as well). This allows for the inclusion of updated products introduced by the defendant during the proceedings, assuming that an at least similar infringement reasoning applies.
    2. Do not object to new submissions, arguments, or exhibits that are triggered by and serve as a response to the Statement of Defence, and for which there was no reason to bring them earlier in the Statement of Claim. The UPC is a front-loaded system. However, you are still able to answer arguments included in the defence. The defendant can, after all, react to these arguments in their Rejoinder.
    3. If you file auxiliary requests, then include them in a tabled overview. In addition, substantiate each auxiliary request (i.e. which invalidity arguments each auxiliary request addresses and why it should succeed). I would like to add that it was never the intention of the drafters of the Rules that 51 auxiliary requests would be considered a reasonable number. The argument that there are numerous invalidity attacks is unconvincing. You should do your homework before you take your patent into litigation: have an experienced litigator and patent attorney look for potential extension of subject matter problems and perform a thorough prior art search. If needed, limit the patent in central limitation proceedings.
    4. UPC proceedings are not the place to conduct prosecution or repair mistakes (such as the extension of subject matter) made during the initial filing. The Drafting Committee generally envisioned about five auxiliary requests. The JR is entirely correct: one cannot expect a decision within 12 to 14 months if a Court must handle an excessive number of auxiliary requests.

#### **25 February 2026 (late published)**
**Local Division The Hague, GSK v Pfizer**

[UPC\_CFI\_620/2025; UPC\_CFI\_1509/2-025; UPC\_ CFI1511/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/20260225%20R.9.3%200rder%20CFI_620.2025.pdf)

***Housekeeping by the JR***

**Facts**

1. This is an infringement case against 27 Pfizer companies and four BioNTech companies.
2. The defendants asked the Court to order GSK to limit its number of auxiliary requests. In addition, the defendants asked the Court to grant an extension of time for the Rejoinder to the Statement of Defence and the Reply to the Counterclaim. They argued this extension was necessary, because GSK’s last submission contained 377 pages and included late-filed information.

**The Court**

1. The Court points out that there are currently 42 auxiliary requests (ARs). The Court decides that any further ARs (including combinations of the existing 42) are subject to Court approval.
2. The Court reiterated its preliminary opinion that 42 ARs is not reasonable given the UPC's goal of reaching a decision within 12 to 14 months.
3. A final decision will be made during the interim conference.
4. The Court held GSK's statement is not excessive compared to the Statement of Defense when counting words (instead of pages). The Court therefore held that a significant extension of time is not warranted.

**The JR**

1. The JR granted a one-week extension.
2. GSK was ordered to provide a tabular overview of the auxiliary requests.

**Comment**

1. See my comments above regarding the GSK v Moderna decision.
2. “*In der Beschränkung zeigt sich der Meister*“: mastery is revealed in restraint. It is difficult and time-consuming to be brief and to the point. Whilst UPC deadlines are reasonable if work begins immediately, they are short. I therefore have some understanding for long submissions (here: 377 pages).
3. I have some advice for representatives (or judges): ask AI to provide a 10-page summary, check it, and then start the submission with that summary. This allows the Court to quickly understand what to expect before digesting 377 pages. As a famous US judge once said: if you cannot convince me with your one-page summary, it is very likely you are going to lose. At the time, no one dared to ask if he read anything beyond that summary!

#### **27 February 2026** ***(late published)***
**Court of Appeal, Sibio v Abbott**

[UPC\_CoA\_884/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/Order%20exchange%20further%20pleadings%20in%20884-2025.pdf)

***Procedural file in appeal proceedings***

**Facts**

1. Sibio’s revocation action with respect to EP 3 831 283 was dismissed by the Central Division Paris.
2. Sibio appealed that decision.
3. On 24 February, Abott filed its Statement of Answer.
4. On 26 February, Sibio requested further exchanges of written submissions: Abbott had argued the patent should be upheld based on auxiliary requests (if the Court of Appeal did not uphold the patent).

**The JR of the Court of Appeal**

1. The JR refused the request, as the auxiliary requests had already been filed in first instance proceedings.
2. The entire first-instance file serves forms the basis for the appeal proceedings.
3. Therefore, Sibio could and should have anticipated in its Statement of Appeal that Abbott would (also) rely on its auxiliary requests.

**Comment**

1. This decision was to be expected!
2. A lesson for all representatives: if you appeal an unfavorable decision, you must assume the defendant will raise all defences (including auxiliary requests) used in the first instance. Even those defences that the Court of First Instance did not address because other defences were already successful.
3. Your statement of claim must deal with all these defences!

#### 
**3 March 2026**
**Court of Appeal, Bega v Washtower**

[UPC\_CoA\_887/2025 ](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/Final%20Order_R%20265%20Withdrawal_UPC-CoA%20887-2025_Bega%20v%20Washtower_2026-03-03_Signed.pdf)

***Withdrawal / value of PI proceedings***

**Facts**

1. The Court of The Hague granted a preliminary injunction (“PI”) against Bega.
2. Bega also appealed the PI order
3. On 6 February 2026, Washtower applied to withdraw the action for a PI. They also confirmed they would pay the costs for the first instance and appeal, and would be responsible for damages resulting from the enforcement of the PI.
4. On 10 February 2026, Bega agreed with the withdrawal under the condition that the Court of Appeal decided on the costs and Washtower had to compensate for the damages.
5. Parties agreed to let the Court of Appeal decide on the costs.

**Court of Appeal**

1. You can withdraw your claim (with the consent of the Court) until the final decision.
2. The Court has to decide on costs (R. 265.2 RoP). As Bega agreed, the Court allowed the withdrawal. That ended the PI appeal proceedings.
3. The value of PI proceedings is generally 66% of the value of proceedings on the merits.
4. Parties agreed on a value of the litigation of €1 million for the proceedings on the merits. As that value concerns the entire infringement action, and includes relief in addition to the injunctive relief and the claim for damages, the Court of Appeal finds it reasonable to apportion 80% of that value to the injunction claim. According to the Court of Appeal, the value of Washtower’s application for provisional measures was therefore set on 66% of 80% of €1 million, resulting in €530.000.
5. The Court of Appeal:
    1. allows the withdrawal;
    2. orders that Washtower bears the costs for first and second instance;
    3. orders that Washtower shall provide Bega with appropriate compensation for the enforcement of the inspection;
    4. determines the value in dispute at € 530.000.

**Comment**

1. I do not know who drafted the rules governing costs, but it is all rather complicated. This is costly for users, and time-consuming for the Court. If the Rules are reviewed, I hope we will have a look at simpler national systems instead of picking the most complicated one. In 50 years of patent litigation, I have never had to deal with cost proceedings and I have never heard complaints!

#### **3 March 2026**
**Local Division The Hague, Advanced Brain Monitoring v Philips**

[UPC\_ CFI\_43/2025; UPC\_CFI\_103/2025 ](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/20260303%20Final%20Decision%20UPC_CFI_043-2025.pdf)

***Prior art not found by (or before) the European Patent Office***

**Facts**

1. Advanced Brain Monitoring (“ABM”) started infringement proceedings based on EP 2 437 696 B2 “*for systems and methods controlling position*” of a sleeping person. The Philips entities counterclaimed for revocation.
2. The patent was previously upheld (with amendments) by the Technical Board of Appeal of the European Patent Office.
3. ABM filed one auxiliary request.
4. An interim conference on 21 November 2025 resulted in several orders:
    1. the value of the litigation was established;
    2. the claimant was to submit an overview of all its exhibits;
    3. the defendants were to submit editable versions of their submissions and annexes;
    4. the defendants amended their requests;
    5. the defendants withdrew their argument based on a US patent; the challenge to the priority date therefore became irrelevant in the context of these proceedings;
    6. the parties agreed on the definition of the skilled person;
    7. the Judge-Rapporteur explored settlement possibilities, and asked parties to report on a possible settlement within three weeks.

**The Court**

1. The Court decided the revocation first, holding that claim 1 lacked novelty and the auxiliary request lacked an inventive step based on a Japanese prior art publication.
2. The Court reached this decision by interpreting certain claim elements using the principle developed by the UPC’s Court of Appeal in *Nanostring v 10x Genomics*.
3. During the hearing, ABM for the first time asserted that the dependent claims should be dealt with before turning to the auxiliary request. The Court ruled these were also not novel or inventive. The same applied to the auxiliary request.
4. The Court did not explicitly refer to the test for inventive step in *Meril v Edwards* but provided a convincing reasoning for the lack of inventive step.
5. The Court did not address the non-infringement defence or other invalidity attacks, as that was unnecessary.

**Comment**

1. Like the decision in Vienna last week, we see a judgment from the Local Division The Hague in just over 12 months!
2. These proceedings demonstrate the use of the interim conference as intended: to ensure efficient handling of the oral phase.
3. This was a very simple “invention”. So simple, in fact, that one even wonders if it should have been granted without the Japanese publication. Yet, ABM obtained the patent – even after opposition. ABM is likely disappointed by the late introduced Japanese publication. As I have said before: the lesson is to perform a very thorough prior art search before embarking on litigation rather than relying on the EPO search alone.
4. Finally, the Dutch representatives showed the way regarding costs: they agreed on them!

#### **4 March 2026**
**Court of Appeal, Hurom v NUC**

[UPC\_CoA\_678/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/Order_Application%20RoP%2036_Hurom%20v%20NUC_UPC_CoA_678-2025_2026_03_04_Signed.pdf)

***One exchange of written pleadings in appeal***

**Facts**

1. On 23 May 2025, the Paris Local Division dismissed the infringement claim and revoked Hurom’s patent.
2. Hurom appealed and filed two new auxiliary requests with its grounds of appeal.
3. The Court of Appeal indicated that following the Statement of Appeal, the case was expected to be ready for oral argument on 2 April 2026 (by order of 30 October 2025).
4. On 22 December 2025, NUC filed a response and cross-appeal together with two new prior art documents, one Korean and one US patent application.
5. In its reply to the statement of cross-appeal, Hurom asked for a further exchange of written pleadings in order to respond to NUC’s arguments with respect to the non-admissibility of the new auxiliary requests, or, in the alternative, to respond to NUC’s argument that these new auxiliary requests are not inventive over the new prior art documents filed by NUC.

**The JR**

1. The JR refused the request.
2. The JR recalls that the written phase on appeal consist of two pleadings.
3. NUC defended in its response itself against the new auxiliary requests invoking two new prior art documents.
4. Hurom waited two months after NUC’s response with its request, knowing that the Court of Appeal would consider the case ready for oral argument after NUC’s response.

**Comment**

1. On appeal, there is only one exchange of written pleadings. It is clear that often the claimant would like to react (as is possible in first instance) to the Statement of Defence, but that will normally have to take place during the oral argument.
2. Art. 36 RoP which provides a potential basis for a further written exchange is only for exceptional circumstances and has certainly not much prospects, as it would endanger the date for the oral hearing which is often established long ago.
3. That there is only one exchange of written pleadings on appeal is understandable, as in principle, the appeal is based on the requests, facts and evidence submitted by the parties in first instance. Parties may bring new requests, facts and evidence, but they may be disregarded by the Court of Appeal (R. 222.2 RoP).

#### **6 March 2026**
**Court of Appeal, Black Sheep v HL Display**

[UPC\_CoA\_895/2025; UPC\_CoA\_896/2025 ](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/Decision%20withdrawal_Black%20Sheep%20v.%20HL%20Display%20_UPC-COA%20895-2025_UPC-COA-896-2025.pdf)

***Settlement***

**Facts**

1. Blacksheep was injuncted by the Local Division The Hague.
2. Blacksheep filed an appeal.
3. The parties asked for and obtained a stay (for three months) for settlement discussions.
4. Blacksheep filed a request for withdrawal on 25 February 2026.
5. On 2 March 2026, HL Display indicated that it agreed and that it did not request a decision on costs.

**The Court of Appeal**

1. The Court of Appeal accepts the withdrawal.
2. There is no costs decision.
3. 50% reimbursement of appeal fees (under the new Rules applicable since 1 January 2026).

**Comment**

1. I did not see if Blacksheep asked for a return of fees. I assume so, because no return of fees should be awarded if not requested. A party may appreciate the work of the Court so much that it would not ask for such return! (Bravo!)
2. Note: This was a withdrawal of the appeal and not (by the claimant) of the claim. Therefore, the decision in first instance remains in force.

#### **6 March 2026**
**Court of Appeal, Dyson v Dreame International and Eurep**

[UPC\_CoA\_813/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/Referral%20order%20Dyson%20-%20Dreame_0.pdf)

***Referral to CJEU***

**Facts**

1. Dyson holds a patent for a hairdryer.
2. Dreame International (a Hong Kong company) operates several country-specific websites incorporating country-specific web shops, among others in Germany and Spain. Dreame International offers hairdryers through its website.
3. Eurep (a German company) is the so-called EU representative in Europe and is mentioned on the packaging of Dreame International products.
4. Dyson sued both companies in preliminary injunction (“PI”) proceedings in Hamburg, alleging infringement of their hairdryer patent.
5. LD Hamburg granted injunctions for the UPC and Spain against Dreame for the old products, and ordered Eurep to not provide services for infringement of the patent.
6. No injunction was granted for the new products, as the Court ruled that it was more likely than not that they were not infringed.
7. Both companies appealed.

**The Court of Appeal**

1. The Court of Appeal stayed the appeal proceedings as far as they concern the injunction for Spain, and the entire injunction as far as Eurep is concerned, and will ask questions to the Court of Justice of the European Union “CJEU”).
2. The Local Division Hamburg was right in accepting jurisdiction against Eurep because Eurep is established in the UPC, namely Germany. So it is for the jurisdiction question irrelevant if Eurep infringed in Spain.
3. With respect to the Hong Kong company Dreame, the Court of Appeal sees two questions.
4. The first question: Is Art. 8(1) of the Brussels I bis Regulation (“BR”) applicable? Is there the possibility of irreconcilable judgments between a judgment against infringement of a party in Spain (a non-UPC country) and a judgment against a company established in the UPC area.
5. With the second question, which is relevant if Art. 8(1) BR would not give jurisdiction against Dreame, the Court assumes that Art. 71b(2) BR has for the UPC the same meaning as Art. 35 BR for a national court. The Court of Appeal refers to the case law which requires for jurisdiction on the basis of that provision the existence of a real connecting link between the subject matter of the measure sought and the territorial jurisdiction of the EU member state (see the decision of the CJEU in *Van Uden*).
6. The Court wonders what the situation is if a non-EU company (which therefore cannot be sued on the basis of Art. 4 BR) is committing the same infringing acts in several (UPC and non-UPC) member states. Can you then sue that company for PI measures in one EU member state or do you have to hold that that chosen court is not closely connected with the infringement in the other EU member states?
7. The third question relates to the question if Eurep is an intermediary in the sense of Directive 2004/48, as Eurep only provides compliance with certain laws? The Court of Appeal adds that LD Hamburg did not consider Eurerp as an infringer, and states that it agrees with that decision.

**Comment**

1. The first referral to the CJEU!
2. Question 1
    1. That seems to me (almost) an *acte clair*. If you state in your Statement of Claim that both the German and the Hong Kong company infringe in Germany and Spain, this means that there is the possibility of irreconcilable judgments because also the Spanish court has jurisdiction against both companies on the basis of Art. 7(2) BR.
    2. If the UPC and the Spanish court have a different view with respect to the infringement, the decisions are irreconcilable.
    3. It is not a *Primus v Roche* situation where each defendant infringed a different national EU patent, but a *Solvay v Honeywell* situation in which defendants can be sued for the same acts in different courts.
    4. It may be different if it is crystal clear that the acts of the German company do not amount to infringement in Spain and also cannot be considered unlawful in Spain (as for the latter, the Spanish judge still may have to judge about the infringement of the patent as the basis of the unlawful act is assisting with the infringement in Spain). Well, that certainly does not seem crystal clear.
    5. The Court of Appeal has some questions about the requirement in *Solvay v Honeywell* that the divergence must arise in the same situation of fact and law, and the Court wonders if that is the case as Eurep is only providing a service which make infringement possible while Dreame offers the infringing product. However, it seems to me that in both situations, we deal with exactly the same (relevant) situation, which is the offer of Dreame. That is decisive for both infringements. What the CJEU meant is, in my opinion, a situation where you have for example different versions of the same European patent or where in one country Product A is sold and in another country product B. while both A and B are alleged to infringe the same patent.
3. Question 2
    1. This is a more interesting question. One has to realize that if a EU-based company infringes in the whole EU, you can stop that with a preliminary injunction by the court of his residence.
    2. If a US (or other non-EU) company would do so. you have to go to the different courts of the UPC and the other EU countries, if you interpret the close link of Van Uden in such a way that only the court of the territory where the infringement takes place would be competent.
    3. To create a level playing field between (infringing) EU and non-EU companies, I hope that the CJEU will hold that when the infringement takes place in several countries, there is a strong link between these infringements. Therefore, if with respect to one infringement a Court has a close link (because it takes place in his country), then there is also a close link with the other infringements (which have close links with the infringement closely linked to the Court).
4. Question 3
5. I think that the CJEU will hold that Eurep is an “intermediary”. The services of Eurep are a *conditio sine qua non* for Dreame being able to sell their infringing products in the EU. But the CJEU will have “the last word”! I cannot understand very well why the Court of Appeal does not consider the providing of such services as an infringement under *Belkin v Philips*. To me this clearly falls under “aiding” “infringement”. At least, as I stated under question 1 above, under Spanish law such “aiding” infringement may be qualified as an unlawful act (compare with allowing the infringing use of one’s marketing authorization).

#### **6 March 2026**
**Court of Appeal, Dyson v Dreame**

[UPC\_CoA\_789/2025; UPC\_CoA\_813/2025 ](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/Injunction%20order%20Dyson%20-%20Dreame_0.pdf)

***Claim interpretation***

**Facts**

1. See the case reported above.
2. The Local Division Hamburg granted the decision against the old products of Dreame but refused to issue a preliminary injunction against Dreame for the new products, because they were unlikely to infringe.
3. The Court of Appeal here deals with the appeal of Dyson against the decision that the New products do not infringe. This was decided in the case Dyson v Dreame Hong Kong and Eurep GmbH and in the case Dyson v Dream Hong Kong, Teqphone GmbH and Dreame Sweden. The Court of Appeal also deals with the appeal of the Dreame companies (and Teqphone) with respect to the finding of infringement of the old products.

**The Court of Appeal**

1. The Court will not stay the proceedings against Dreame as far as it relates to the Territory of the UPC and against defendants Teqphone (a German company) and Dreame Technologies (a Swedish company).
2. With respect to the Swedish company and the German company, the Court has jurisdiction on the basis of Art. 4 (as they are domiciled in the UPC) of the Brussels I bis Regulation (“BR”).
3. With respect to Dreame Hong Kong, the Court has jurisdiction for the UPC on the basis of Art. 7 (2) BR.
4. The Court of Appeal granted the request for leave to change its claim (R. 263 RoP) for including the new products which Dyson could not have known when filing its Statement of Claim.
5. The Court cites the principles of claim construction as formulated in its decision in Nanostring v 10x Genomics.
6. The Court of Appeal rejects Dreame’s submission that “*the overlap must be determined from a radial viewpoint in relation to the axis of the tubular attachment*”.
7. The Court of Appeal holds: “*While the function of a structural element must be considered when interpreting a claim feature relating to such element the interpretation must likewise take into account the physical and spatial configuration of the elements as taught by the patent.*”
8. This interpretation does not conflict with statements of Dyson in the US prosecution, even assuming that statements made in the context of other patents are relevant.
9. Also during the examination of the patent, Dyson had not made any remarks which the skilled person would have considered as limiting the claim.
10. The Court confirmed the decision with respect to the old products, but overturned the decision with respect to the new products. It finds it more likely than not that these are infringing as the Local Division of Hamburg gave a too limited claim interpretation of claim feature 1.6.
11. The Court grants a general injunction, holding: “*As a general rule, the fact that a party has infringed the patent is sufficient to establish the risk of further infringements through other acts of use, including infringing acts which had not previously committed.*”

**Comment**

1. It is self-evident that the meaning of a structural claim feature is not exhaustively defined by its function. The physical and spatial configuration of the feature is equally relevant. This is also reflected in the doctrine of equivalence and the classical “means–way–function” test: whether substantially the same result is achieved by substantially the same means in substantially the same way.
2. The Court of Appeal accepts that the prosecution history may play a role in claim interpretation. Where the skilled person, on the basis of the prosecution file, would understand that a more limited meaning of a claim element was intended — and, in particular, where that limitation was decisive for grant — the decision can be understood as recognising a form of file wrapper estoppel.
3. The Court further indicates that statements made by the patentee during the prosecution of other patents (for example, corresponding US patents) may be taken into account. However, such statements are not necessarily determinative for the interpretation of claims of a European patent. The Court leaves the precise weight to be attributed to such statements open.
4. The Court accepts the generally worded injunction, which is a good thing because it avoids having to start new proceedings for every minor modification of the infringing embodiment. What exactly the scope of such injunction is in relation to the forfeiture of penalty sums, remains to be decided. I think that where the skilled person cannot reasonably doubt that the modified product also infringes, penalty sums are justified.

**– All comments above are** [**Prof. Hoyng**](https://www.hoyngrokhmonegier.com/our-team/legal-experts/prof-willem-hoyng "https://www.hoyngrokhmonegier.com/our-team/legal-experts/prof-willem-hoyng")**‘s personal opinions –**