Irides: Weekly global patent litigation update

This edition features updates from: The EPO, the USA and the Unified Patent Court (UPC).

The Irides Weekly Update is our round-up of patent litigation news highlights from around the world.
 

EPO

EPO Board of Appeal confirms that unresolved claim ambiguities may broaden claim scope.
[Philip Morris v Nicoventures Trading T0977/25]

On 30 July 2026, the Technical Board of Appeal (TBA) of the EPO overturned an earlier Opposition Division decision to maintain EP 3288403 (EP 403) in amended form. EP 403 concerns a cartridge for an aerosol-generating system and is held by Philip Morris Products S.A. In its decision, the TBA addressed a number of significant issues relating to claim interpretation, implicit disclosure and the interaction between ambiguity and added matter (Art. 123(2) EPC).

Claim 12 of the Main Request defines a method of manufacturing a cartridge for use in an aerosol-generating device. The patentee modified this claim during oral proceedings by filing an auxiliary request 1 (change underlined):

"fixing a heater assembly comprising at least one heater element to the open end of the housing so that it extends across the opening of the housing".

The Respondent, Nicoventures Trading Limited, argued that this amendment made it unclear whether the word "it" referred to the heater assembly or the heater element. The TBA considered that both readings were technically sensible and that the ambiguity could not be resolved through claim interpretation alone.

The TBA rejected the notion that leaving an ambiguity in a claim unresolved means claim interpretation remains open or undecided. Instead, it held that

an unresolved ambiguity may simply lead to a broader interpretation of the claim. In the TBA's analysis, the amended claim covered both technically reasonable alternatives. The claim was therefore interpreted as encompassing either scenario, rather than selecting one meaning or leaving the issue unresolved.

That approach proved fatal under Art. 123(2) EPC. Although one of the possible interpretations was disclosed in the application as filed, the other was not. Because the claim, when given its broader interpretation, covered subject matter that was not directly and unambiguously derivable from the original disclosure, the TBA found that the amendment added matter. In doing so, the Board expressly questioned an alternative line of authority suggesting that ambiguities should first be resolved through interpretation before compliance with Art. 123(2) EPC is assessed. Instead, it emphasised that claim interpretation must come first, and that an ambiguity may widen the scope of what the claim covers.

The decision will be of interest in light of the pending referral G 1/26.
 

USA

Jury awards US$5.72 billion against Apple after rejecting invalidity challenges. 
[Taction v Apple Case No.: 21-CV-812 TWR (JLB)]

On 25 September 2026, Taction secured a victory against Apple in the Southern District of California after a jury found infringement of two US Patents, rejected Apple's invalidity case and awarded $5.72 billion (USD) in damages. The jury did not, however, find that Apple's infringement was wilful.

In a pre-trial ruling, handed down from 3 September 2026, the Court considered and refused Apple’s motion for summary judgment of no wilful infringement. Apple argued that, following the exclusion of certain evidence, Taction's post suit wilfulness case rested solely on Apple's continued sale of accused products. The Court considered the standard for willingness and rejected the argument that "egregious" conduct is required. Instead, the question is whether there was deliberate or intentional infringement, a factual issue ordinarily reserved for the jury. The Court held that Taction had identified sufficient evidence to allow that issue to proceed to trial, including Apple's continued launch of accused products after suit was filed, its alleged failure to implement identified non infringing alternatives and evidence concerning its internal handling of the asserted patents.
 

UPC

Oxford Nanopore secures provisional measures for nanopore sequencing technology.
[Oxford v MGI UPC_CFI_2307/2026]

On 15 September 2026, the Munich Local Division (LD) granted Oxford Nanopore Technologies (Oxford) interim relief against MGI, in relation to two patents concerning nanopore sequencing technology and MGI’s Cyclone sequencing platform. The relief awarded extends beyond the UPC contracting member states to the United Kingdom, Ireland, Switzerland and Liechtenstein.

Oxford relied on evidence obtained from examination of a Cyclone device and associated software, which allegedly demonstrated the patented sensor architecture. The Court noted that MGI had provided no substantive technical rebuttal and applying r. 171.2 RoP treated Oxford’s case as established. A similar approach was taken in relation to the second patent, where Oxford relied on experimental evidence and technical inferences concerning hydrophobic membrane anchors. The Court rejected MGI’s argument that it lacked knowledge of how its own system operated. As an importer of the allegedly infringing products into Germany, MGI was expected to investigate whether its products infringed patents in force in the relevant territory. The Court also regarded admissions of infringement made by a related entity in parallel Australian proceedings as supporting the conclusion that infringement was more likely than not.

The Court found that there was sufficient evidence of direct infringement by MGI. Oxford relied on a YouTube video showing a Cyclone device at MGI’s Berlin premises, together with evidence concerning MGI’s European customer experience centre. As MGI had not specifically disputed Oxford’s allegation that the device had been imported into Germany and stored for commercial purposes, those facts were treated as established. The presence of the device, combined with MGI’s role as a European commercial hub, was also held to create an imminent threat of further infringing activity, including marketing, demonstrations and customer use of the technology. 

The Court concluded that activities carried out by MGI and the three related respondents based in China (but not yet served) could be attributed to MGI under the common design doctrine. Particular weight was placed on overlapping ownership, management personnel, marketing activities and scientific collaboration.

When considering urgency, the Court applied recent Court of Appeal guidance and held that the relevant period ran from when Oxford first had sufficient information to bring a viable application, namely a LinkedIn promotion directed at European customers discovered in May 2026. Earlier activities, including a CE marking announcement, were considered insufficient because they did not clearly establish infringing activity in territories where the patents were in force. The Court also reiterated that patent proprietors are generally under no obligation to continuously monitor the market for infringement.

The Court found that the requirements of necessity and proportionality were satisfied. The Court noted that “irreparable harm is not a necessary condition” but rather necessity can arise from direct competition between the patentee’s product and the accused product. Interim relief was required to preserve the status quo in what was effectively a single supplier market for nanopore sequencing technology. The Court considered that entry by MGI’s competing platform created a real risk of market share erosion and price pressure and concluded that the balance of interests favoured Oxford because any loss suffered by MGI could be compensated in damages if the injunction were later overturned.

The Court granted relief in UPC contracting member states and beyond, extending to the United Kingdom, Ireland, Switzerland and Liechtenstein. Although MGI accepted the internation jurisdiction of the Court, it was noted that the formal requests for the relief to extend into these jurisdictions had to be decided on the application law in each country. The Court was satisfied that the relevant legal principles in those jurisdictions did not materially differ from the UPC’s approach. MGI’s argument that necessary regulatory approvals in those countries had not yet been obtained was rejected, the Court finding both that such approvals could readily be secured and that existing promotional activities already created a sufficient threat of infringement. 

Despite the wide jurisdictional reach of the order granted, no security payment was required for enforcement because no doubts were raised about Oxford’s ability to pay any consequential damages claim.
 

UPC

Brussels Local Division rejects disclosure requests and confirms entitlement may be raised as a defence. 
[2seventy bio v Johnson & Johnson UPC_CFI_029/2026 et al]

The Brussels LD has refused the defendants’ requests for disclosure in 2seventy bio v Johnson & Johnson and in doing so, provided important guidance on entitlement challenges and the procedural status of patent proprietors in UPC proceedings. 

The Court rejected the NIH’s request to be reclassified as a co-claimant on two grounds. Firstly, it held that, as an intervener, the NIH could not pursue claims other than those already advanced by the original claimant. Secondly, in circumstances where there was no procedural request (the NIH only submitted a request to the court “to invite a party to introduce an application”), the Court also declined to use its procedural powers to reclassify the NIH as a co-claimant. The NIH therefore remained an intervener in the infringement action while simultaneously being a defendant to the revocation counterclaims.

The Court also held that entitlement may be raised as a defence notwithstanding r. 8.4 RoP. Under this rule, the registered proprietor of a unitary patent is treated as such for UPC procedural purposes. The Court found that this creates a “legal fiction”, for the purpose of applying the RoP. However, this legal fiction does not create an irrebuttable substantive law presumption. As a result, defendants may challenge entitlement where relevant to standing or other substantive issues. 

However, applying the CoA's guidance in Polytechnik v Dall (previously reported here), the Court found that the defendants had not established a sufficiently plausible entitlement challenge to justify production of evidence under Rule 190 RoP. The disclosure requests were therefore dismissed. The Court also confirmed that compliance with Art. 47 UPCA's prior notice requirement is assessed when proceedings are commenced, with the burden resting on the claimant.
 

UPC

 PMAC opens public consultation on FRAND guidelines.

The PMAC has launched a public consultation on its draft FRAND Guidelines, which aim to provide a flexible, non-binding framework for resolving FRAND disputes through alternative dispute resolution methods. Stakeholder comments are to be submitted by 26 October 2026. In parallel, the PMAC and the EPO have announced plans to develop a global database of FRAND case law.
 

New episodes: You, Me and the UPC: Case by case

Episode 93: Munich Local Division upholds DivX streaming patent and finds Netflix liable for indirect infringement

Episode 94: The Court of Appeal distinguishes jurisdiction from admissibility in pre-grant declaration of non-infringement dispute