- within Transport topic(s)
1. Key takeaways
An amendment to include a new product is permissible, but may be unnecessary if the initial claim for injunctive relief is already broadly worded
The Court found the claimant's request for relief against infringing products "and/or further versions or variants thereof" was already broad enough to cover the new product.
Even if one would consider the adding of the new product as a change of claim or amendment of the case according to R. 263 RoP the amendment was admissible as the claimant acted with diligence following EU marketing approval, and the defendant was not unreasonably hindered as the new product's composition was similar.
Evidence and arguments in a reply are admissible if they are a response to the statement of defense/counterclaim concerning non-infringement and claim construction
The Court allowed the claimant's new evidence and arguments, finding they were a direct response to the defendant's positions on non-infringement and claim construction in the statement of defense and therefore dismissed defendant's R. 9 RoP application taht aimed at dismissing late-filed submissions and arguments.
The Court held that a claimant need not anticipate every defense argument in its initial claim, and the defendant would have sufficient opportunity to respond both, in one more written round and during the oral hearing.
The Court may question the reasonableness of a high number of auxiliary requests filed with the R.30.1 RoP application to amend the patent and order a structured overview instead of an immediate limitation
The Court was not convinced that 40 auxiliary requests were justified by the defendant's limited and reasonable number of invalidity attacks and questioned their manageability within the UPC's expedited timeline.
Instead of limiting the requests, the Court ordered the claimant to submit a comprehensive tabular overview of its auxiliary requests, clearly indicating which (combination of) features is introduced with each auxiliary request and indicating in one column which validity attacks are addressed.
2. Division
LD The Hague
3. UPC number
UPC_CFI_616/2025
4. Type of proceedings
infringement action
5. Parties
Claimant: GlaxoSmithKline Biologicals SA, Belgium
Defendants: Moderna Netherlands B.V., the Netherlands; Moderna Biotech Spain, S.L., Spain; Moderna Biotech UK Limited, UK; Moderna Biotech Distributor UK Ltd, UK; Moderna Switzerland GmbH, Switzerland; Moderna Poland SP. Z.O.O., Poland; Moderna, Inc., US; ModernaTX, Inc., US; Moderna Belgium S.R.L., Belgium; Moderna France SASU, France; Moderna Germany GmbH, Germany; Moderna Italy S.R.L., Italy; Moderna Portugal Unipessoal LDA, Portugal; Moderna Sweden AB, Sweden; Moderna Norway A/S, Norway
6. Patent
EP 2 590 626
7. Body of legislation / Rules
Rule 263 RoP, Rule 9 RoP
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
