Cybex GmbH v. NUNA International B.V. and Allison GmbH, Local Division Hamburg, 10 August 2026, Case no. UPC_CFI_1321/2026
This decision is of interest because it addresses the extent to which a patentee may rely, in preliminary injunction proceedings, on a claim set other than the one granted, both as a main request and by way of auxiliary requests filed in the course of the proceedings.
Cybex sought preliminary measures against two Wonderland group companies in respect of EP 4 242 056, which concerns a child seat system with a base and two seat elements of differing rotatability. As its main request Cybex relied not on the granted main claim but on a combination of that claim with a dependent claim, with one alternative deleted and the wording of the additional features reworked. In its reply it announced further auxiliary requests adding a feature not contained as such in any dependent claim.
The panel confirmed that reliance on a claim set with a narrower scope of protection than the granted claims does not as such preclude preliminary measures, referring to the Court of Appeal’s order in Onward/Niche (UPC_CoA_898/2025, 27 March 2026). The auxiliary requests were, however, rejected as inadmissible at the oral hearing.
Although auxiliary requests may in principle be admissible in urgent proceedings under R. 263.2 RoP, the summary character of such proceedings must always be kept in mind, and the question is whether the defendant’s ability to defend itself is curtailed to an unacceptable degree. Requests raised for the first time in the reply and adding a feature not available as a fallback in any dependent claim left the defendants only a very short period in which to prepare a defence, in particular on validity.
As to validity, because the claim set relied upon had not been examined in the grant proceedings, there was no prima facie presumption of validity, and the court had to satisfy itself that the asserted version was valid. Sufficient certainty is lacking where, on the balance of probabilities, invalidity appears to be more likely than not (following Local Division Düsseldorf, Align v. Angelalign, UPC_CFI_723/2025). On the merits the novelty attacks failed, as did the obviousness attack and the objection that the asserted version extended beyond the original disclosure.
Infringement, both direct and indirect, was found, the outcome turning on the construction of the disputed feature of the main claim. One of the attacked embodiments fell outside the order. On the balance of interests the court emphasised the long service life of the products, so that customers lost to the defendants during that period are not recoverable by the applicant. Urgency was unproblematic, the application having been filed roughly a month after grant. Instead of an outright ban on the components, each of which can also be used without infringing, the court imposed a duty to give notice as the milder measure, which also limited the effects on the defendants. Penalty payments and an interim award of costs were ordered. Neither a security under R. 211.5 RoP nor a security enabling the defendants to avert enforcement was considered appropriate.
A copy of the Order (in German, with English headnotes) can be read here.
