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.
 

UKIPO

IPO refuses AI Perception patent application ANN Recommendation System. 
[Emotional Perception AI Ltd BL O/0894/26]

The UK Supreme Court's decision earlier this year in Emotional Perception AI v Comptroller (previously reported here) replaced the existing Aerotel test for unpatentable excluded matter with the EPO's "any hardware” approach. It also held that while an Artificial Neural Network (ANN), the subject of Emotional Perception's patent application, was a "program for a computer" within the meaning of Art. 52(2)(c) of the EPC, the patent application did not fall foul of the exception as it would be implemented using some form of computer hardware. The new test also followed the EPO’s position by, having removed the particular technical nature of the invention from the exclusion question, bringing those issues back in again in the subsequent analysis of inventive step.

The Supreme Court, therefore, remitted the case back to the UKIPO for reconsideration under the new guidelines and for consideration of the new "intermediate step" i.e. which features (whether technical or non-technical) of the invention did not contribute to, or interact with, the technical character of the invention viewed as a whole, and then excluding those features from the consideration of novelty and obviousness.

In its decision of 1 October 2026, the UKIPO held that the patent application's claim to produce a "semantically better" file for a user was not a technical result and therefore could not form part of consideration of novelty and obviousness. Accordingly, the UKIPO indicated that the remaining technical character of the invention viewed as a whole was merely "Computer hardware running a program that selects and outputs a file" and that this was not inventive over the common general knowledge. Accordingly, on its fifth successive evaluation since having been filed at the IPO, Emotional Perception's patent application has been refused again.
 

UPC

Court of Appeal (CoA) grants NVIDIA reinstatement following earlier CoA clarification on conditional revocation appeals.
[NVIDIA v ParTec AG UPC-CoA-140/2026]

BF exaCQ AG and ParTec AG, the claimants in these proceedings, had brought patent infringement proceedings against the defendant, NVIDIA in front of the Munich Local Division (LD). In response, the defendant filed a conditional counterclaim for revocation of the patent in-suit, agreeing that a decision on validity would only be required if the patent was found to be infringed.

At first instance, the Munich LD dismissed the claimants' infringement claim without deciding the defendant's conditional counterclaim for revocation. The claimant subsequently appealed against the dismissal of the infringement action. However, the defendant did not lodge its own appeal before the expiry of the time period for filing set out in r. 224.1 of the RoP.

In the meantime, the CoA handed down its decision in Emboline v AorticLab [UPC-COA-40/2026] which established that where the Court of First Instance had not ruled on the merits of a conditional counterclaim for revocation, because infringement was not established, a party wishing to pursue that revocation counterclaim must nevertheless lodge a separate appeal.

The defendant argued that, before that clarification was issued, it had no reason to appreciate that a standalone appeal was necessary to allow revocation arguments to be considered in the infringement appeal. It therefore applied for reinstatement to its previous status under r. 320 RoP and simultaneously filed both a notice of appeal and grounds of appeal in relation to the revocation counterclaim. While the claimants were provided the opportunity to comment on the defendant's application pursuant to r. 320.1 RoP, they ultimately did not object to the application for reinstatement. The CoA granted the application on the basis that NVIDIA had exercised due care but could not reasonably have known of the clarification as in Emboline before the deadline for lodging the notice of appeal under r. 224 RoP. It therefore granted reinstatement and declared NVIDIA’s appeal admissible.
 

UPC

Düsseldorf LD clarifies limits of r.171(2) RoP.
[Inficon v Elitech UPC_CFI_137/2025 et al]

On 6 October 2026, the Düsseldorf LD clarified the limits of r.171(2) RoP when assessing technical evidence of infringement in Inficon v Elitech.

R.171(2) RoP provides that a statement of fact that is not specifically contested by any party shall be held to be true as between the parties. Inficon had submitted measurements in support of infringement of a certain integer of claim 1 of the patent in suite which Elitech had not specifically contested. However, the Court found that as Inficon’s measurements were “from the outset unconvincing and inconclusive”, r. 171(2) RoP did not apply. The Court held that Inficon had failed to establish its case on infringement in the circumstances.
 

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

Episode 95: Court of Appeal clarifies res judicata, prior use rights and rule 171.2 challenges

Episode 96: Oxford Nanopore secures provisional measures for nanopore sequencing technology