The Düsseldorf (DE) Local Division confirmed that there is no prosecution history estoppel in proceedings in front of the UPC. This confirmation came in the order of 30 April 2024 granting 10x Genomics, Inc. a preliminary injunction against Curio Bioscience Inc. (UPC_CFI_463/2023).
The Court further stated that comments made by the applicant during prosecution in front of the EPO "may be at best indicative of how a person skilled in the art would understand the relevant feature", but are not legally limiting. However, the Court emphasised that Art. 24(1)(c) UPCA in conjunction with Art. 69 EPC conclusively determine which documents are to be used for interpreting the patent claims determining the protective scope, namely the patent description and the patent drawings. The judges concluded that there could be no deviation from those black letter rules.
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