Irides: Weekly patent litigation update

This edition features updates from: The United Kingdom (UK), the European Union (EU), the Unified Patent Court (UPC) and the United States of America (USA),

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.
 

UK - STOP PRESS

Permission to Appeal granted in Generics v AstraZeneca. 

AstraZeneca has been granted permission to appeal the decision of Michael Tappin KC, sitting as a Deputy Judge, to revoke its dapagliflozin patent and SPC for lack of plausibility and lack of technical contribution (reported here last week). The Court of Appeal hearing will take place on 25 June 2025.
 

UK

Further commentary on Court of Appeal decision in Optis v Apple.

As reported in our update last week here, the Court of Appeal overturned the first instance decision and significantly increased the global FRAND rate in its judgment handed down on 1 May 2025.  Our in-depth analysis can now be found here.  
 

UK

High Court considers interest claim following account of profits judgment. 

As reported in March (see here) Lufthansa was awarded compensation  following a judgment in July 2020 (upheld by the Court of Appeal in 2022), in which Astronics, Safran and Panasonic were all held to have infringed Lufthansa’s patent for an aircraft passenger in-seat power supply system. Lufthansa had elected for an account of profits and in the present decision, Mr Justice Leech had to decide whether Lufthansa was eligible for interest on the sums awarded in March. Counsel for the defendants formulated various arguments against the granting of interest on the account of profits but had to concede that the Court had awarded interest on the sum due after taking an account of profits for infringement of an intellectual property right on at least four previous occasions. 

Rejecting the Defendants’ arguments, the Judge found “it would be entirely artificial to [assume] a limitation for an account of profits for patent infringement based on eighteenth and nineteenth century cases where the Court was far more reluctant to award interest”.  Ultimately therefore, Leech J decided that “a court of equity has always had jurisdiction to grant relief on terms in order to fashion the remedy which best does justice between the parties”.  Interest was therefore awarded for the period of time during which profits were earned from the infringement of the patent.

The Judge also rejected the Defendants’ request for a provision of the order which allowed for an application to alter the award if it subsequently transpired there would be double recovery after proceedings in France and Germany.  The Judge concluded that “if I make a provisional award of profits and give the Defendants permission to apply, I fully expect the parties to treat this as an invitation to re-open the Order which I have made and to raise a raft of issues about the effect of the French and German decisions. It is time to bring this litigation to an end (at least at first instance)”.
 

EU

Commission publishes non-confidential version of Copaxone decision.

On 8 April 2025, the European Commission published a (provisional) non-confidential version of its Copaxone decision of 31 October 2024 (as mentioned in our Weekly Update here). The Decision finds two separate, stand-alone abuses: (1) misuse of the patent system via the so-called “divisionals game” and (2) denigration of a competitor product.

In coming to its decision on misuse of the patent system, the Commission confirms that the staggered filing of divisionals along with selective withdrawal of multiple secondary patents is considered an abuse, in the absence of a legitimate purpose. Staggered filing may include the successive filing of divisionals with shared essential features (in this case every 2 years for a period of 11 years) with no clear reason for doing so (such as ongoing research).  Strategic withdrawal may be found where the same grounds of challenge are brought in successive EPO proceedings, and the patents are repeatedly and strategically withdrawn to avoid a reasoned decision which is capable of delaying generic entry (irrespective of whether it does in fact do so, and with no intent to do so being necessary). 

The Commission confirms that abuse by denigration of a competitor product may be found where there is dissemination of misleading information following the grant of a competitor MA regarding the safety and efficacy of that authorised generic alternative, in the absence of objective justification. That includes deploying a centrally created communication strategy, targeting payers (e.g. pricing and reimbursement authorities, procurement bodies, health insurance companies and other Member State authorities) and healthcare professionals (whom the Commission considered to be particularly vulnerable to disparaging practices). Information may be considered objectively misleading even in circumstances where the misleading messages are not factually inaccurate, but could lead the addressed to draw inaccurate inferences. The Commission confirms that pharmacovigilance obligations rest solely with the MA holder for the given medicinal product, and that genuine concerns should be raised with competent authorities, following proper procedures set out in applicable legislation, and that action taken should be proportionate. 

Teva has made clear that it considers the Decision to be “based on legal theories that […] are extreme, untested, and factually unsupported” and intends to appeal.
 

UPC

Hamburg Local Division rules on patent infringement and validity. 
[UPC_CFI_278/2023]

The Hamburg Local Division delivered its judgment on 30 April 2025 in respect of AGFA NV’s patent infringement claim against several companies under the Gucci brand. AGFA’s patent is to a method for decorating natural leather with an image using an achromatic base coat (other than black) and inkjet printing with UV curable inks. AGFA claimed that Gucci's "Pikarar Collection" infringed the patent but the Court found that the base coats of Gucci's products were not achromatic. 

Gucci's counterclaim for revocation was also dismissed. Gucci had argued invalidity on the basis of lack of novelty over the prior art and public prior use as well as obviousness.  In relation to the novelty arguments, the Court again found that the disclosed base coats in the prior art and prior use were not achromatic as taught by the patent.  In relation to obviousness, the Court decided that the prior art did not provide a clear motivation or teaching to combine the specific features in the way claimed by the patent. It also found that the use of an achromatic base coat and UV curable inks, as claimed in the patent, was not obvious to a person skilled in the art based on the cited prior art. 

The Court ordered AGFA to bear 40% and Gucci 60% of the costs of the proceedings on the basis that AGFA had been fully unsuccessful with regard to the claims in the infringement action but the Gucci companies were equally unsuccessful in their counterclaim for revocation.
 

UPC

Court of Appeal overturns rejection of preliminary injunction and provides guidance on claim construction and the balancing of interests. 
[UPC_CoA_768/2024]

Following its decision overturning the rejection of a preliminary injunction (PI) in the case of Abbott v Sibio earlier this year, on 30 April 2025 the Court of Appeal handed down a further decision granting a PI on appeal in Insulet v EOFlow, overturning the first instance decision of the Milan Central Division. The patent in question related to a fluid delivery device for delivering therapeutic liquids to a patient, and more particularly, to an infusion pump.

Claim construction and expert evidence

The Court of Appeal took a fundamentally different view on claim construction to that of the Milan Central Division at first instance, adopting a narrower reading of the claim. The main point of distinction was that the Court of Appeal construed the claim as being limited to the device in its assembled state, following previous Court of Appeal guidance in VusionGroup v Hanshow (UPC_CoA_1/2024) that claim features must be interpreted in light of the claim as a whole. The claim required that a “nut” must be allowed to pass through a “clutch mechanism when disengaged” but the Court of Appeal ruled out an interpretation that this might only occur while the device was being assembled and not in its final assembled state.  As a result, the claim was found more likely than not to be novel over a prior art document, which the Milan Central Division had considered likely to deprive the claim of novelty on the basis of its broader construction. The Court of Appeal was also satisfied that the claim was more likely than not to be inventive.

In reaching its conclusion, the Court considered the role of expert opinions and emphasised that the interpretation of a patent claim is a judicial task, not to be left solely to experts. EOFlow had provided expert evidence on the interpretation of the claim and the disclosure of the prior art to support their argument that the claim was anticipated by this document. As Insulet had not provided an expert opinion of its own, EOFlow argued that the Court should follow that of their expert.  However, the Court noted that just because Insulet had not provided opposing expert evidence, this did not mean that the Court must follow the only expert’s view. Further, although the Court acknowledged that the basis of claim construction is the skilled person’s understanding of terms used in the patent claim, the decision emphasises that the decisive factor is “not the individual knowledge and abilities of a person, but rather the general specialist knowledge that is customary in the relevant field of technology, as well as the average knowledge, experience, and abilities in this specialist field”. The Court concluded that it is for the Court, not an individual expert, to assess these circumstances. The Court noted, however, that if claim construction is dependent on facts that can be proven, the Court shall consider the expert opinions submitted by the parties with respect to such facts.

Infringement and the balancing of interests

Having concluded that the patent was more likely than not to be valid, the Court of Appeal was satisfied that infringement was also more likely than not to have occurred, although this portion of the decision is heavily redacted to remove confidential information. 

Regarding the balancing of interests and irreparable harm, which are to be taken into account by the Court when exercising its discretion to grant a PI, the decision sheds some more light on relevant factors that will be considered at the UPC. In this case, these included: direct competition between the parties’ products; price pressure, price erosion and the prospect of an increase in sales of allegedly infringing products; lock-in effects, such that market access is blocked once the alleged infringing product is adopted by patients and hospitals; expected timing of the main action decision and whether Insulet had acted quickly enough to start main action proceedings; and the status quo and whether there was an established market for the alleged infringing products, including the volume and timeframe of sales by the defendant made prior to grant of the patent.

EOFlow had made arguments regarding patients’ interests, arguing that their products provided benefits over Insulet’s products. However, the Court disregarded these arguments, considering that the grant of the PI would lead to mere inconvenience for patients, who could easily switch to other devices available on the market.

Having weighed the various factors, the Court of Appeal was satisfied that the balance of interests tipped in favour of granting the PI to Insulet.

Security and costs

No security was required for Insulet to enforce the PI as the Court considered it unlikely that a main action decision would lead to a different outcome, or that enforcing an order for compensation if the PI was revoked would entail an undue burden.

Insulet was also awarded 100% of its recoverable costs, with no costs awarded to EOFlow. Although it had been unsuccessful in its request for information regarding the sales quantity and the price obtained for the EOFlow’s products, it was successful on all other elements and the Court considered that the unsuccessful request had been relatively minor and caused no further costs.
 

UPC

Paris Central Division revokes patent due to lack of novelty and inventive step.  
[UPC_CFI_230/2024]

On 30 April 2025, the Paris Central Division gave its decision  in the revocation action filed by Kinexon Sports & Media GmbH against Ballinno B.V. regarding Ballinno’s patent entitled “Method and system for detection an offside situation”. The patent relates to a method and system designed to assist sports referees by detecting when a player makes contact with a ball by sensing a sound signal produced by the ball. The Court held that broad terms used in the independent claims  should not be limited by more specific features disclosed in dependent claims or embodiments of the description, as these merely indicate possible ways in which in the invention can be utilised.

Ballinno had argued for a narrow claim construction that would limit the scope of the claims to offside detection in football, relying on wording in dependant claim 2 (referring to a “first player” and “second player”, which they asserted to introduce a temporal element to independent claim 1 and tie claim 1 to offside rules) and the description of the patent (which includes a statement that an object of the invention is to help a referee and linesman to correctly judge offside). Ballinno also pointed to the reference to “an offside situation” in the title of the patent as justification for restricting the claim's scope.  The Court rejected this construction, finding that the claims did not mention football or offside, and instead used general terms like “games and sports”. The description also made it clear that offside detection in football is only one application of the claimed technology.  Embodiments mentioned in the patent description only permit the conclusion that they fall under the claim; they do not necessarily restrict the scope of a claim.   The Court also found that the title of a patent was non-limiting.

Following its finding that the claims related to a broader general detection method applicable across multiple sports contexts, not confined to football or offside detection, the Court went on to find that the claims lacked novelty and inventive step over the prior art. The patent was therefore revoked in its entirety and the Court ordered Ballinno to pay Kinexon’s legal costs.
 

USA

PTO announces new working group to mitigate threats to patent system.

The US PTO recently announced the formation of the Patent Fraud Detection and Mitigation Working Group. The Group will be the main point of contact within the US PTO for reporting possible threats to the patent system.

The Group will focus on monitoring suspicious filings, addressing mistakes in fee certifications and identifying and reviewing potential misrepresentations to the PTO. The Group will use the administrative sanctions process to address these misrepresentations.  Additional details and examples of key threats can be found here.