Irides: Weekly patent litigation update

This edition features updates from: The United States of America; The European Patent Office; and The Unified Patent Court (UPC).

The Irides Weekly Update is our round-up of patent litigation news highlights from around the world. Taking its name from the plural of “iris” - a nod to the ability of Irides to see what’s happening around the world.

USA

Court of Appeals considers patentability of claims using machine learning.

In its decision Recentive Analytics v Fox Corp dated 18 April 2025, the US Court of Appeals for the Federal Circuit considered the patent eligibility of four Recentive Analytics patents using machine learning models for the optimisation of scheduling live events and “network maps” (which determine the programs displayed by a broadcaster’s channels within certain geographic markets at particular times). The Court’s conclusion succinctly summarises the key finding:

“Machine learning is a burgeoning and increasingly important field and may lead to patent-eligible improvements in technology. Today, we hold only that patents that do no more than claim the application of generic machine learning to new data environments, without disclosing improvements to the machine learning models to be applied, are patent ineligible under § 101.”

The Court of Appeals applied the two-step test for patent eligibility under Alice Corporation v CLS Bank International, 573 U.S. 208 (2014) (Alice). Under step 1 of Alice (whether the claims are directed to patent-ineligible subject matter) the Court considered that the claimed inventions were merely using generic machine learning technology in a new environment, i.e. to carry out the claimed methods for generating event schedules and network maps. The patents were not claiming an improved algorithm or a way to make the machine learning better. As such the first instance Court was correct to conclude that the patents were directed to “abstract ideas” which is ineligible subject matter.

Under step 2 of Alice (whether the additional elements ‘transform the nature of the claim’ into a patent-eligible application), the Court of Appeals considered there was nothing in the claims that would transform the patents into something “significantly more” than the abstract idea of generating event schedules and network maps through the application of machine learning. As such the Court of Appeals again agreed with the first instance Court that the claims also failed to satisfy step 2 under Alice and therefore dismissed the appeal.

EPO

Standard of proof required to establish public availability of internet publications.

On 18 December 2024, the Technical Board of Appeal (TBA) handed down its decision in an appeal of the Opposition Division’s decision rejecting the opposition filed against EP 3 388 760 (EP 760), a patent relating to a regulation method for an inverter compressor in a refrigeration system. The opponent-appellant, Carel Industries S.p.A (Carel) argued that D9, a user manual, had been published on the internet before the priority date rendering the invention obvious. Carel submitted a digital forensics report (D39) and several affidavits to support its assertion. The patentee-respondent, Nonwatio Technology Solutions, S.L. (Nonwatio) argued that this was not sufficiently established.

Nonwatio submitted that the higher standard of proof applied as D39 lay within the sphere of Carel, and therefore the availability of D9 must be proven beyond reasonable doubt. In this regard, it was argued that the evidence was contradictory and thus the higher standard of proof was not fulfilled. The Board referred to G 1/12 and G 2/21 in assessing the standard of proof required. Proceedings before the EPO are conducted in accordance with the principle of free evaluation of evidence, requiring the assessment of evidence according to a judicial body’s own conviction, without any formal rules. The EPO standard of proof is generally the “balance of probabilities”, which can only be increased to “beyond reasonable doubt” in exceptional circumstances (usually concerning public prior use allegations where only the opponent has access to the necessary evidence). The Board considered it difficult to quantify the difference in the required degree of conviction between the two standards and noted that attempts to describe the difference using numerical thresholds (e.g. percentages) could even be misleading. The Board therefore focussed on the term “reasonable” and noted that absolute certainty was not required. It was sufficient if the (majority of) the members of the deciding body have no reasonable doubt, and any remaining doubt is considered insubstantial in view of the entirety of the evidence available. The Board further noted, referring to T 2466/13, that if the deciding body is convinced beyond reasonable doubt, there is no need to decide which standard of proof is applicable.

The Board found that D39 establishes that D9 was publicly available on the internet well before the priority date of EP 760. The inconsistencies in other evidence were insufficient to cast doubt on D39 and Nonwatio had not challenged the credibility or methodology of D39. Starting from D9, the Board then found that there was no inventive step, allowing the appeal and revoking EP 760.

UPC

Munich Local Division grants permission to amend infringement claim to cover UK, Poland and the Czech Republic.
[UPC_CFI_566/2024]

Following the CJEU’s decision in BSH Hausgeräte v Electrolux (C-3999/22), Syngenta sought permission to amend its UPC claim to cover infringement of the Polish, Czech and UK parts of the patent in suit.

The Defendant (Sumi Agro) sought to resist the application on the basis that the amendment could have been made with reasonable diligence earlier (i.e. when the proceedings were commenced in September 2024) and therefore that permission should not be granted in accordance with r. 263(2)(a) RoP. The court disagreed. In light of the ECJ case law when the claim was filed, the panel considered the Claimant could not have expected to include non-UPC territories at that stage. Further, the AG opinion available was not binding on the CJEU and there was therefore legal uncertainty around the issue at the time the claim was filed.

Accordingly, by way of its order dated 14 April 2025, panel 1 of the Munich Local Division allowed the application to amend. There was no discussion on the substance of the amendment, for example, as to whether the UPC does in fact have jurisdiction to determine infringement in the non-UPC territories in the circumstance of this case.

UPC

Court of Appeal denies application for suspensive effect pending appeal.
[UPC_CoA_166/2025]

On 18 April 2025, the Court of Appeal gave an Order in relation to an application by Meril GmbH and Meril Life Sciences Pvt Ltd (collectively Meril) for suspensive effect of an injunction (or a stay of enforcement) pending their appeal. Edwards Lifesciences Corporation’s (Edwards) patent, EP 3 646 825, which relates to a prosthetic heart valve, had been maintained in amended form by the Paris Central Division following revocation proceedings. The injunction was then granted by the Munich Local Division in its decision in the infringement action, with the decision also allowing Edwards to publish the Court’s decision. 

Meril argued that the Munich Local Division’s first instance decision was unclear and manifestly erroneous. Further, Meril argued that the decision violated fundamental procedural rights, in particular the right to be heard, as it had (i) failed to consider relevant statements and evidence submitted by Meril and, (ii) disregarded Meril’s arguments against Edwards’ claim to allow publication of the decision. Meril also submitted that their interests in maintaining the status quo outweighed Edwards' enforcement interests and the appeal against the decision to allow publication of the decision would become devoid of purpose if suspensive effect was not ordered. Edwards subsequently declared that it had not published and will not publish the decision pending appeal.

The Court of Appeal dismissed Meril's application for suspensive effect as unfounded, noting that such applications may only be granted if the circumstances of the case justify an exception to the principle that an appeal shall have no suspensive effect. The Court of Appeal found that the appeal would not be devoid of purpose without suspensive effect further to Edwards’ commitment not to publish the decision pending appeal. Further, the Munich Local Division’s decision was not manifestly erroneous, the obligations were sufficiently clear and there was no manifest violation of procedural rights. In relation to the right to be heard, the Court of Appeal considered that the mere fact that expert opinions had not been expressly addressed and that the Court did not expressly decide on Meril’s requests to appoint and hear experts was not sufficient, since the Court may have implicitly addressed Meril’s evidence and requests in its decision. Meril had therefore failed to demonstrate an overriding interest in maintaining the status quo, and the application was rejected.