Seoul Viosys Co., Ltd. and Seoul Semiconductor Co., Ltd. v. expert e-Commerce GmbH and expert klein GmbH, Decision UPC Court of Appeal, 5 November 2025, Case nos. UPC_CoA_762/2024 and UPC_CoA_773/2024
Headnotes:
The court may, when examining an allegation of added subject-matter, independently determine that the skilled person would not derive the alleged disclosure from the earlier application. This determination must be made on the basis of the understanding of the skilled person when reading the earlier application as a whole.
• If the international application is not drafted in one of the official languages of the European Patent Office (EPO), the content of an application derived from the international application is primarily determined with the aid of a translation. The requirement to file a translation in the proceedings before the EPO is not a purely formal or procedural requirement. By filing this translation, the applicant submits to the EPO the application documents in the language of the proceedings, on the basis of which the EPO examines the application and, in the event of amendments to the application documents, assesses whether these amendments comply with Article 123(2) EPC.
• Since it is in the applicant’s own interest that the examination be based on the true content of the application, it may prima facie be assumed that a translation submitted by the patent applicant accurately represents the content of the international application in the language of the proceedings.
• Third parties and the court may, when assessing an alleged added subject-matter, prima facie rely on the translation of the application filed by the patent proprietor with the EPO and published by the EPO. If the patent proprietor claims that this translation is incorrect, it is up to the proprietor to prove the inaccuracy.
[Machine translation]
The Decision can be read here.
