Guardant Health, Inc. v. Sophia Genetics SA, Sophia Genetics SAS, Sophia Genetics SRL, and Sophia Genetics GmbH, Order UPC Court of Appeal, 2 July 2026, Case no. UPC-CoA-19/2026
Provisional measures.The Court of Appeal reversed the first instance finding that the patent was likely to be invalid for reasons of added matter, but -also contrary to the CFI- is not convinced that Guardant acted with the required urgency.
Facts
Guardant is the proprietor of the European Patent 3 443 066 (“the patent at issue”) with unitary effect relating to a method for detecting the presence or absence of various types of cancer.
On 27 May 2025 Guardant sent a warning letter to Sophia Genetics SA and Sophia Genetics Ltd relating to various UK patents, amongst which the patent at issue (EP ‘066). Sophia replied on 20 June 2025 to the UK warning letter, after which Guardant started litigation on 14 July 2025.
On 29 August 2025, Guardant lodged an Application for provisional measures before the Paris Local Division against Sophia, asserting the patent at issue (amongst other patents).
In the impugned order, the Paris Local Division rejected the Application for provisional measures under EP’066, holding that the patent was likely to be invalid for reasons of added matter. Guardant appealed, Sophia lodged a cross-appeal.
The Court of Appeal
The Court of Appeal reversed the finding of the Paris Local Division that the patent at issue is more likely than not invalid on the grounds of added matter.
However, according to the Court of Appeal, Sophia successfully objected against the first instance finding that Guardant sought provisional measures within a reasonable delay.
The Court of Appeal is not convinced that Guardant acted with the required urgency when filing the Application for provisional measures, even though that can not be derived simply from the fact that in the UK Guardant started litigation on 14 July 2025 asserting (amongst others) the patent at issue:
“As Guardant lodged the reasons for the action in the UK not before 18 August 2025, it cannot be assumed that, on 14 July 2025, Guardant was already in a position to apply for preliminary measures with regard to the patent at issue before the UPC.”
“In this context it is relevant when Guardant became aware of an infringement of the patent claims in question; it is not relevant when Guardant acquired the necessary knowledge regarding the other patents asserted at first instance. A patent holder is not obliged to assert all patents in one application for provisional measures. If a patent holder has the necessary information for filing an application for provisional measures regarding some, but not all patents, delaying the filing of the Application for provisional measures until it has the necessary information regarding all infringed patents may be regarded as an unreasonable delay.”
“As a general rule, the patent holder is not obliged to monitor the market. However, if the patent holder becomes aware of specific circumstances that suggest patent infringement, the patent holder is expected to investigate the matter with due diligence so that the patent holder can take action against all infringers as quickly as possible. Sophia did not provide any circumstances suggesting that Guardant had or should have been aware of a patent infringement before 1 May 2025. The fact alone that the attacked embodiments have been available on the European market since April 2024 is not sufficient.”
“[T]he decisive factor for assessment of urgency is when its authorised representative body or an individual, who by virtue of its position within the legal entity is capable of pursuing the infringement or reporting it, internally becomes aware of it.”
“As stated above, if the patent holder becomes aware of specific circumstances that suggest patent infringement, the patent holder is expected to investigate the matter with due diligence so that it can take action against all infringers as quickly as possible. It follows that as soon as Guardant was aware of infringing activities of Sophia in the UK, Guardant was expected to investigate whether there were the same infringing acts also in UPC territory, Switzerland and Spain.”
“If Guardant launched its investigation on 1 May, it is difficult to understand why it took until 13 August 2025 ‒ a period of more than three months ‒ to find sufficient evidence showing that Sophia was selling the infringing products within the UPCˈs jurisdiction, and that all the Sophia companies were responsible. The same applies even if Guardant launched its investigations on 31 May 2025”
A copy of the decision can be read here.
