Edwards Lifesciences Corporation v. Meril GmbH & Meril Life Sciences Pvt Ltd., UPC Court of First Instance, Munich (DE) Local Division, 17 February 2025, Case no. UPC_CFI_15/2023
Meril applied for rectification of a decision pursuant to R. 353 RoP – the rectification of clerical mistakes, errors in calculation and obvious slips. The panel granted some but not all of the rectifications and provided further guidance on how R. 353 RoP may be used.
Background
The dispute centred around European Patent No. 3 646 825, which covers a prosthetic heart valve system. Edwards Lifesciences Corporation, the patent holder, claimed that Meril GmbH and Meril Life Sciences Pvt Ltd infringed this patent with their “Myval Octacor” heart valve.
Meril Italy initiated a revocation action, arguing that the patent should be invalidated due to reasons such as extension of the subject matter, lack of novelty, and lack of inventive step. This led to a series of legal actions, including an infringement action by Edwards in the Munich Local Division (LD) and revocation counterclaims by Meril entities.
The Munich LD found that Meril’s Myval Octacor heart valve infringed Edwards’ patent, resulting in an injunction against Meril in 16 UPC member countries. We covered this decision in our article here. Meril now sought rectification of the order made by the Munich LD.
Grounds
The panel set out the rule for rectification under R. 353 RoP – which is worth repeating in full:
“[t]he Court may upon an application by a party made within one month of service of the decision or order, rectify clerical mistakes, errors in calculation and obvious slips in the decision or order. Besides clear factual errors “obvious slips” can be rectified. “Obvious slips” within the meaning of R. 353 RoP are all incorrect or incomplete statements of what the Court actually intended in the order or decision. In other words, the declaration of the Court’s intention in the decision or order must deviate from the intention that existed when the decision was made.”
Rectifications
The rectifications may be split into three categories:
• Clear Mistakes – such as Meril GmbH being based in Bonn, not Düsseldorf as stated in the decision. These rectifications were not opposed by Edwards and accepted by the panel.
• Narrowing the language – the wording of the decision is accurate, but it allows other (inaccurate) interpretations. For example, page 13 of the decision states that Meril contends its product does not exhibit the features set out in claim 1 of EP ‘825, “namely features 3, 4 and 5a”. Meril argued that the use of “namely” implies the list of claim features is exhaustive, whereas in reality they contend there are other claims features their product does not infringe. Meril suggested “namely” be replaced with “in particular”. The panel decided that although “namely” and “in particular” may be used as synonyms, there was sufficient doubt to warrant the rectification.
• Substantive Changes – Meril requested the deletion of a sentence saying that the Opposition Division (“OD”) and Board of Appeal (“BoA”) of the EPO agreed with the judges that a piece of prior art was not novelty destroying. Meril requested this deletion as the prior art in question was not addressed in the OD or BoA’s decisions – only a preliminary opinion from the BoA. The panel rejected the deletion, as the EPO did not regard the prior are as novelty destroying, so it was not a clerical mistake, error in calculation or obvious slip. It is unclear whether the rectification would have been allowed if Meril had suggested some clarificatory language, rather than requesting the paragraph be deleted.
Conclusion
Overall, the panel was open to rectifications where something was wrong or unclear, but unwilling to make amendments where one party thought the wording gave the wrong impression.
Finally, don’t forget there is a 1-month deadline following the service of the decision to apply for any rectifications.
The order is here.
