Messerle GmbH v Sabert Corporation Europe S.A., CFI Vienna Local Division, UPC_CFI_26/2025, 19 February 2025, UPC_CFI_375/2025
This case concerned packaging for foodstuffs. Both the infringement claim and the revocation counterclaim were dismissed.
One point of note was that a new piece of prior art that was the subject of five enclosures filed by the defendant (and counterclaimant for revocation) was held to be inadmissible, as it has not been filed with the counterclaim for revocation but at a later date. The defendant’s argument that these enclosures were not filed as a separate piece of prior art but in support of their submissions regarding the skilled person’s understanding of the disclosure of “D4” (a commercial brochure) was rejected: the skilled person’s understanding of D4 would be based solely on the skilled person’s evaluation of the brochure itself. Introducing knowledge of the product itself would risk the interpretation of the brochure being tainted by “hindsight” and that needed to be avoided.
When assessing inventive step, the local division followed the guidance provided by the Court of Appeal in Meril v Edwards and Amgen v Sanofi (see UPC_CoA_464/2024, Decision of 25. November 2025, Headnotes 4 – 13, mn. 128 – 136 – Meril v. Edwards; UPC_CoA_528/2024, Decision of 25 November 2025, Headnotes 10 – 22, mn. 122 – 138 ff. – Amgen v. Sanofi). Of two items of prior art relied upon by the defendant, D4 and D5, the local division rejected D5 as not being a realistic starting point. Even starting with D4, which was considered to be a realistic starting point, the claimed invention did not lack inventive step, as there was no pointer or motivation that would have directed the skilled person to take the necessary steps in the direction of the claimed invention.
A copy of the decision can be found here.
