ONWARD Medical N.V. v. Niche Biomedical, Inc., UPC Court of Appeal, 27 March 2026, Case no. UPC_CoA_898/2025
Auxiliary Requests in UPC Preliminary Injunction Proceedings
Onward brought preliminary injunction (PI) proceedings against Niche before the Local Division, relying on EP 3 421 081. The Local Division rejected the application, finding it more likely than not that claim 1 lacked novelty. It also took the view that auxiliary requests have no place in PI proceedings. Onward appealed.
The Court of Appeal first referred to R. 211.2 RoP and found nothing to suggest that a PI can only be sought on the basis of a granted claim. Also, R. 30 RoP was held to be inapplicable here as PI proceedings are not revocation proceedings.
The Court noted that whether such a request will be granted turns on the specific circumstances of the PI case, including the permissible scope and number of auxiliary requests.
The Court permitted a minor amendment under R. 222.2 RoP to the revised claim, which had already been presented at first instance. In doing so, it confirmed that R. 222 RoP extends to PI appeal proceedings.
Turning to the substantive infringement analysis, the Court held that direct infringement requires every element of the claim to be present in the allegedly infringing product. That threshold was not met here, as the product in question still required programming by medical staff at the hospital before it could operate as claimed.
The claim of indirect infringement likewise failed, as there was insufficient basis to establish that the products were intended to be programmed in a manner consistent with the claim.
The appeal was accordingly dismissed.
The Order can be read here.
