UPC_CFI_100/2024;UPC_CFI_411/2024 – Ona v Google

Expert Commentary

Indirect infringement claim filed too late Facts 1. The proceedings concern infringement and revocation actions relating to EP 223098. 2. The claimant was ordered by the Judge-Rapporteur (“JR”) to provide further details regarding the assignment chain of the patent. 3. The Court dismissed the request to hold an interim conference. 4. The claimant filed an unsolicited submission introducing new claims of indirect infringement. The JR rejected this submission. The claimant asked for review of that decision. The Court 1. The Court discusses the technical teaching of the patent. 2. Claim 9, which was disputed by the parties, is interpreted by the Court more narrowly than advocated by the claimant, which leads to a finding of non-infringement. 3. The Court applies the principles set out by the Court of Appeals (“CoA”) in Amgen v Sanofi when assessing inventive step. 4. The Court decides that: a. It is not necessary to rule on entitlement, as the patent is not infringed; b. The patent is not infringed. For direct infringement of a product claim, the alleged infringing product needs to have all the claimed elements of that product claim. Here the product does not contain the controller, which is located on accessary devices; c. The revocation action is dismissed. Comment This decision brings a clear lesson for practitioners on the front loaded character of UPC proceedings: If indirect infringement is neither alleged in your Statement of Claim nor raised in response to the defence, you are certainly too late. This case is a good example of a claimant who apparently (due to insufficient preparation) failed to notice that the (precise) products challenged did not contain all the elements of the asserted product claim. The Court therefore held that such products did not directly infringe! As I understand the decision, this mistake ultimately did not make much of a difference, as another claim element was also not reproduced! The Court further stated that, where indirect infringement is alleged, you must clearly set out and prove all elements required for indirect infringement.

Full Decision Text

1 Düsseldorf Local Division UPC_CFI_100/2024 UPC_CFI_411/2024 Decision of the Court of First Instance of the Unified Patent Court delivered on 15 January 2026 concerning EP 2 263 098 B1 Headnotes: 1. The Rules of Procedure show that in constellations where a claimant wants to obtain a decision to remove the effects of a granted patent (be it the validity of the patent or the declaration that a specific act does not constitute an infringement) the law priori- tizes the registration over the entitlement. Ratio legis is the legal certainty for the claimant. It does not have the burden to “search” the entitled proprietor. 2. If a product consists of different components, the alleged infringing product must show every claimed component. Cases where only certain features of a product are infringed may be examples for an indirect infringement (Art. 26 UPCA), but not for direct in- fringement (Art. 25 UPCA). Keywords: Register, proprietor, Rule 25 RoP, Rule 42 RoP, Rule 8.6 RoP; direct infringement, indirect infringement 2 CLAIMANT/COUNTERDEFENDANT 1: Ona Patents SL, represented by its Managing Director Raúl Diaz Morales, Rambla Mossen Jacint Verdaguer 55 (Update Business), 08197 Sant Cugat des Valles, Barcelona, Spain represented by: Attorney-at-law Dr Christof Augenstein, Attorney-at-law Dr Ben- edikt Walesch, Attorney-at-law Dr Melissa Lutz, Kather Augen- stein, Bahnstraße 16, 40212 Düsseldorf, Germany Patent Attorney Dipl.-Ing. Benjamin Bubendorfer, Bubendorfer IP, Zeppelinstraße 73, 81669 Munich, Germany electronic address for service: augenstein@katheraugenstein.com COUNTERDEFENDANT 2: Ekahau Oy, represented by the Board of Directors Jeremy Rossen, Brian Conrad Stewart und Ari Olavi Tourunen, Jaakonkatu 5, 00100, Helsinki, Finland represented by: Attorney-at-law Dr Christof Augenstein, Attorney-at-law Dr Ben- edikt Walesch, Attorney-at-law Dr Melissa Lutz, Kather Augenstein Rechtsanwälte PartGmbB, Bahnstraße 16, 40212 Düsseldorf, Ger- many Patent Attorney Dipl.-Ing. Benjamin Bubendorfer, Patent Attorney M. Sc. Andreas Rauscher, WBH Wachenhausen Patentanwälte PartGmbB, Müllerstraße 40, 80469 Munich, Germany electronic address for service: augenstein@katheraugenstein.com DEFENDANTS/COUNTERCLAIMANTS: 1. Google Ireland Limited, represented by its directors Elizabeth M. Cunningham, David M. Sned- don, Vanessa Hartley, Colin Goulding, Amanda Storey, Gordon House, Barrow Street 4, Dublin 4, D04 V4X7, Republic of Ireland 2. Google Commerce Limited, Gordon House, Barrow Street, Dublin 4, D04 E5W5, Republic of Ireland represented by: Attorney-at-law Dr Marcus Grosch, Attorney-at-law Dr Jesko Preuß, Attorney-at-law Dr Andreas Hahne, Quinn Emanuel, Her- mann-Sack-Straße 3, 80331 Munich, Germany electronic address for service: marcusgrosch@quinnemanuel.com 3 PATENT AT ISSUE: European patent n° EP 2 263 098 B1 PANEL/DIVISION: Panel of the Local Division in Düsseldorf DECIDING JUDGES: The decision is issued by Presiding Judge Thomas, by the legally qualified judge Dr Thom acting as judge-rapporteur, the legally qualified judge Kokke and the technically qualified judge Myon. LANGUAGE OF THE PROCEEDINGS: English (pursuant to an order of the president to change the language thereto from German) SUBJECT: Infringement action and counterclaim for revocation DATE OF ORAL HEARING: 29 October 2025 SHORT SUMMARY OF FACTS: 1. The parties argue about the infringement and validity of EP 2 263 098 B1 (exhibit KAP 1; hereinafter the patent in suit or EP 098). European patent application 08736808 was filed on 2 April 2008. The European Patent Office published the patent grant on 7 January 2015. The patent in suit is in force in the Federal Republic of Germany and the French Republic, among other EPC countries. No opposition was filed at the European Patent Office. The Counterde- fendant 2) was registered as proprietor of the patent in suit in the French and the German Patent register at the beginning of the proceedings. During the proceedings the Claimant became the registered proprietor in both Member States. 2. Claim 1, 9 and 10 of the patent in suit read as follows: Claim 1: “A method for determining a location estimate for a first target object (T01) in an envi- ronment which also comprises a second target object (T02); the method comprising: - maintaining a positioning engine (PE) which is operable to model at least one location- dependent physicalquantity with a data model (DM) of the environment, wherein the at least one location-dependent physicalquantity is influenced by the location of the second target object (T02), and wherein the positioning engine isoperable to determine location probability distributions for the first and second target object; - associating the first and second target object (T01, T02) respectively with a co-located first and second signallingdevice (STR1, STR2), wherein at least the second signalling de- vice (STR2) comprises means for sending a positioning-assisting signal and the first sig- nalling device (STR1) comprises means for receiving the positioningassisting signal and means for making observations on the at least one location-dependent physical quantity from the positioning-assisting signal; 4 - the positioning engine (PE) receiving observations on the at least one location-depend- ent physical quantity; - the second signalling device (STR2) sending a positioning-assisting signal (PAS1, PAS2), wherein the positioning-assisting signal is received by the first signalling device (STR1) which makes a positioning-assisting observation set on the at least one location-depend- ent physical quantity from it and sends the positioning-assisting observation set to the positioning engine (PE), wherein said at least one of the signalling devices and said other signalling device are associated and co-located with different target objects; - the positioning engine (PE) making a quantity observation set based on the received observations on the at least one location-dependent physical quantity; - the positioning engine (PE) determining a respective first and a second location proba- bility distribution (LPD1, LPD2) for the first and second target object (TO1, T02), wherein at least the second location probability distribution is based on the data model (DM) and the quantity observation set; - the positioning engine (PE) determining an updated first location probability distribu- tion (LPD1’) based on the first location probability distribution (LPD1), the second loca- tion probability distribution (LPD2) and the positioning-assisting observation set on the at least one location-dependent physical quantity; - the positioning engine (PE) determining the location estimate for the first target object (T01) based on the updated first location probability distribution (LPD1’); - the positioning engine (PE) triggering a physical action based on the location estimate for the first target object (TO1); - characterized in that: - the positioning assisting signal is sent as a response to a preceding positioning-assisting signal sent by the first signalling device; - a controller defines an operation logic for sending the preceding positioning-assisting signal and the preceding positioning-assisting signal is sent in response to a transmission request from the controller; and - the controller adjusts the operation logic based on the positioning-assisting observation set, whereinadjusting the operation logic comprises adjusting a time interval between consecutive transmission requests.” Claim 9: “A positioning engine (PE) for determining a location estimate for a first target object (TO1) in an environment which also comprises a second target object (T02) and wherein at least one location-dependent physical quantity is influenced by the location of the sec- ond target object; the positioning engine comprising: - a data model (DM) which models the at least one location-dependent physical quantity with of the environment, - means for receiving observations on the at least one location-dependent physical quan- tity and 5 - means for determining location probability distributions for the first and second target object; - means (AT) for associating the first and second target objects (TO1, T02) respectively with a co-located first and second signalling device (STR1, STR2); - means for receiving observations on the at least one location-dependent physical quan- tity reflecting the location of the second target object (T02) - means for receiving a positioning-assisting observation set made from a positioning- assisting signal which is sent by at least one of the signalling devices and received by another one of the signalling devices, wherein said at least one of the signalling devices and said other signalling device are associated and co-located with different target ob- jects; - means for making a quantity observation set based on the received observations on the at least one location dependent physical quantity; - means for determining a respective first and a second location probability distribution (LPD1, LPD2) for the first and second target object (TO1, T02), wherein at least the sec ond location probability distribution is based on the data model (DM) and the quantity observation set; - means for determining an updated first location probability distribution (LPD1’) based on the first location probability distribution (LPD1), the second location probability distri- bution (LPD2) and the positioning-assisting observation set; - means for determining the location estimate for the first target object (TO1) based on the updated first location probability distribution (LPD1’); - means for triggering a physical action based on the location estimate for the first target object; - charcaterized by the positioning engine further comprising a controller, wherein: - the positioning assisting signal is sent as a response to a preceding positioning-assisting signal sent by the first signalling device; - the controller is configured to define an operation logic for sending the preceding posi- tioning-assisting signal and the preceding positioning-assisting signal is sent in response to a transmission request from the controller; and - the controller is configured to adjust the operation logic based on the positioning-ad- justing observation set, wherein adjusting the operation logic comprises adjusting a time interval between consecutive transmission requests. Claim 10: “A computer program product for a data processing system, wherein execution of the computer program product in the data processing system causes the data processing system to implement the positioning engine according to claim 9.” 3. With regard to the wording of the other claims, reference is made to the patent in suit. 4. The Claimant is a patent exploitation company based in Barcelona. It supports small and me- 6 dium-sized companies in particular with its experience and expertise as a partner in the ex- ploitation and enforcement of industrial property rights and provides strategic consulting services for this purpose. 5. Defendant 1) is responsible for the German website of the Google online store (https://store.google.com/?hl=de) and it advertises on the website https://www.an- droid.com/intl/de_de/phones/help-me-choose/ devices with the Android operating system manufactured and distributed by Google. When the user of the website clicks on a specific device it will be directed to third-party online shops, which are provided with a link. 6. Defendant 2) organises the sale of articles via the Google Online Store in Germany. Defend- ant 2) supplies customers in Germany directly. The products sold via the website in the Fed- eral Republic of Germany include, in particular, smartphones from the "Google Pixel" series, Google Pixel tablets, headphones from the "Google Pixel Buds" series and smartwatches. 7. The mobile phones of the Google Pixel series and the tablets (´android mobile devices´, here- inafter contested embodiments) are equipped with the pre-installed Android operating sys- tem which includes the "Google Location Service" software or "Google Location Accuracy" positioning system in order to be able to determine their own location. The apps “Google find my Device" (also identified as “Find my device” in the parties’ statements) and "Google Fit: Activity Tracker" apps are also part of the Android operating system. 8. Google continuously collects location-based information from millions of compatible de- vices, Wi-Fi hotspots and mobile phone masts in order to build, develop and refine Google's database of crowd-sourced information. This information is regularly uploaded to the Google server. Google Location Services, the location module in Android, uses this collected infor- mation on the Google servers and locally on the Android mobile device to calculate or track the approximate location of Android devices. Google manages data on these locations in the so-called crowd-sourced database. Google downloads a subset of the crowd-sourced data- base to a local cache on Android devices to speed up location determination. 9. Google's NLP (Network Location Provider) code runs on Android devices and calculates the positions and expected errors of the positions of WiFi-enabled devices based on the calcu- lated positions of the WiFi access points within range of the device. The calculated positions are stored in the WiFi AP table in Google's server and in the local memory of the Android devices (the local device memory is referred to as “cache memory” or simply “cache”). 10. Google's WiFi access point table is a database that stores, among other things, unique iden- tifiers (MAC addresses, Mac IDs) and calculated locations for hundreds of millions of WiFi access points. 11. Google's database uses aggregated scan data (including MAC ID location, signal strengths) collected from CityBlock vehicles, Android and other devices using Google Location Services and processes this data to generate calculated location information for each Wi-Fi access point in the database. The Google Location Server is to be understood as an interface between the Android devices and the database via WiFi access points. Android mobile de- vices such as mobile phones and tablets can use it to determine their own location without GPS. When an app or the Google server requests a user's location data, the Android operat- ing system of the mobile device, for example, quickly performs a scan with its built-in WiFi 7 and mobile phone devices to obtain information about which WiFi access points and mobile phone masts the mobile device can detect. 12. With the "Find my Device" app, users can search for mobile devices and accessories, such as a smart watch, and view their last location. The slightly reduced picture originates from the statement of claim (cf. 60, p. 30). 13. When the user uses the "Google Find my Device" app, the Android mobile device starts an immediate check/update of the location of the device being searched for, depending on whether there is still a Bluetooth connection between the paired devices. If the Bluetooth connection is maintained, the location of the device being searched for is updated to "Last seen just know" on the mobile device's user interface (see above). 14. The "Google Fit Activity Tracker" app is based on the same technology when it comes to determining the location of the smartwatch. The smartwatch connects to the mobile device via Bluetooth to permanently determine its own location while, for example, tracking a run- ning route. The app also uses location services. 15. After the written submissions provided for in the Rules, on 1 August 2025 the Judge Rappor- teur ordered the Claimant to present more details concerning the assignment chain of the patent in suit and submit additional documents in order to clarify inconsistencies and omis- sions. 16. By Order of 28 August 2025, the Presiding Judge summoned the parties to the oral hearing on 29 October 2025 on behalf of the Judge-Rapporteur. According to Cif. 3 of this Order, it was noted that there is currently no intention of the Judge-Rapporteur to hold an interim conference. The Claimant sought a review of the Order regarding the holding an interim con- ference pursuant to R. 333 RoP. In its decision on the review, the Court dismissed the Claim- ant´s request in an Order dated 13 October 2025. 8 17. On 1 September 2025, the Claimant filed an unsolicited submission containing, inter alia, new claims related to indirect infringement asserted in the alternative to its main claim based on direct infringement and new claims related to indirect infringement of the amended form of the patent, also asserted in the alternative. In response Defendants´ filed an objection and a request pursuant to R. 36 RoP on 12 September 2025. By Order of 14 October 2025 the Judge-Rapporteur rejected the auxiliary requests related to indirect infringement and the auxiliary requests related to the amended form of the patent concerning indirect infringe- ment as not admissible. 18. On 27 October 2025, the Claimant requested to review the Order of the Judge-Rapporteur dated 14 October 2025 and to allow the requested new claims related to indirect infringe- ment, submitted on 1 September 2025, asserted in the alternative to its main claim based on direct infringement. REQUESTS OF THE PARTIES: Infringement: 19. The Claimant requests: I. It is found that the Defendants have infringed European patent no. 2 263 098. II. The Defendants are ordered to c e a s e and d e s i s t 1. to offer, place on the market or use or to import or possess for these pur- poses a positioning engine for determining a location estimate for a first target object in an environment which also comprises a second target object and wherein at least one location-dependent physical quantity is influenced by the location of the second target object in the Federal Republic of Germany and French Republic the positioning engine comprising: a data model which models the at least one location-dependent physical quantity with of the environment, means for receiving observations on the at least one location-dependent physical quantity and means for determin- ing location probability distributions for the first and second target object; means for associating the first and second target objects respectively with a co-located first and second signalling device; means for receiving obser- vations on the at least one location-dependent physical quantity reflecting the location of the second target object; means for receiving a positioning- assisting observation set made from a positioning-assisting signal which is sent by at least one of the signalling devices and received by another one of the signalling devices, wherein said at least one of the signalling devices and said other signalling device are associated and co-located with differ- ent target objects; means for making a quantity observation set based on the received observations on the at least one location-dependent physical quantity; means for determining a respective first and second location probability distribution for the first and second target object, wherein at 9 least the second location probability distribution is based on the data model and the quantity observation set; means for determining an updated first location probability distribution based on the first location probability distribution, the second location probability distribution and the position- ing-assisting observation set; means for determining the location estimate for the first target object based on the updated first location probability distribution; means for triggering a physical action based on the location estimate for the first target object; characterized by the positioning engine further comprise a controller, wherein: the positioning assisting signal is sent as a response to a preceding positioning-assisting signal sent by the first signalling device; the controller is configured to define an operation logic for sending the preceding posi- tioning-assisting signal and the preceding positioning-assisting signal is sent in response to a transmission request from the controller; and the control- ler is configured to adjust the operation logic based on the positioning-ad- justing observation set, wherein adjusting the operation logic comprises adjusting a time interval between consecutive transmission requests; (direct infringement of apparatus claim 9) and/or 2. a computer program product for a data processing system, wherein execu- tion of the computer program product in the data processing system causes the data processing system to implement the positioning engine according to claim 9, comprising: a data model which models the at least one location-dependent physical quantity with of the environment, means for receiving observations on the at least one location-dependent physical quantity and means for determin- ing location probability distributions for the first and second target object; means for associating the first and second target objects respectively with a co-located first and second signalling device; means for receiving obser- vations on the at least one location-dependent physical quantity reflecting the location of the second target object; means for receiving a positioning- assisting observation set made from a positioning-assisting signal which is sent by at least one of the signalling devices and received by another one of the signalling devices, wherein said at least one of the signalling devices and said other signalling device are associated and co-located with differ- ent target objects; means for making a quantity observation set based on the received observations on the at least one location-dependent physical quantity; means for determining a respective first and second location probability distribution for the first and second target object, wherein at least the second location probability distribution is based on the data model and the quantity observation set; means for determining an updated first location probability distribution based on the first location probability distribution, the second location probability distribution and the position- ing-assisting observation set; means for determining the location estimate for the first target object based on the updated first location probability distribution; means for triggering a physical action based on the location 10 estimate for the first target object; characterized by the positioning engine further comprise a controller, wherein: the positioning assisting signal is sent as a response to a preceding positioning-assisting signal sent by the first signalling device; the controller is configured to define an operation logic for sending the preceding posi- tioning-assisting signal and the preceding positioning-assisting signal is sent in response to a transmission request from the controller; and the control- ler is configured to adjust the operation logic based on the positioning-ad- justing observation set, wherein adjusting the operation logic comprises adjusting a time interval between consecutive transmission requests. (direct infringement of apparatus claim 10) III. The Defendants are ordered at their own expense 1. to destroy the products referred to in No. II. above, which are in their direct or indirect possession and/or ownership, or, at their discretion, to hand them over to a bailiff to be appointed by the Claimant for the purpose of destruction; 2. to inform commercial customers in writing about the products referred to in No II. that have been on the market since 7 January 2015, referring to the patent infringing condition of the products established by the Unified Patent Court with a binding commitment to recall them, to reimburse any payments made and to bear the necessary packaging and transport costs, as well as any customs and storage costs associated with the return, and to take back the products, whereby the Claimant shall be provided with a sam- ple of the recall letters and a list of the addressees with their names and postal addresses or, at the Defendant's discretion, copies of all recall let- ters; 3. to permanently remove the products referred to in No. II., which have been on the market since 7 January 2015, from the distribution channels, whereby in particular the following measures must be taken: a) the Defendants must take all possible and reasonable measures to identify the locations and owners of the products referred to in No. II.; b) insofar as the Defendants themselves have legal or actual control over the products referred to in No. II., c) insofar as the Defendants themselves have legal or actual control over the products referred to in Section No. II., legally permissible and reasonable measures must be taken to ensure that these products come into the direct possession of the Defendants and remain there; d) insofar as the Defendants have neither legal nor actual power of dis- posal over the products referred to in No. II., they must take all legally permissible and reasonable measures to enable persons who have claims for surrender or destruction against the holders of power of 11 disposal over the products to assert these claims and/or to support these persons in asserting these claims. IV. The Defendants are ordered 1. to provide the Claimant, in writing and in electronic form that can be eval- uated using a computer, in a list structured by calendar month and by pa- tent-infringing products, starting from 7 January 2015 with information on the products listed under No. II. regarding a) the origin and distribution channels of the products mentioned under No II; b) the quantities delivered, received or ordered and the prices paid for the products mentioned under No. II.; c) the identity of all third parties involved in the distribution of the products mentioned under No II.; 2. to provide the following proving documents in writing and in electronic form that can be evaluated using a computer for each month of a calendar year and for each patent-infringing product to the Claimant to the extent that it (the respective Defendant) has committed the acts referred to in No. II. since 7 January 2015: a) invoices – or, if these are not available, delivery notes – for the indi- vidual deliveries, breaking down the respective deliveries by offer quantities, offer times, prices of the goods offered and types, as well as the names and addresses of the commercial recipients of the sales offers for all products sold or otherwise disposed of; b) proof of advertising carried out, including evidence of such advertis- ing activities, broken down by advertising medium, their reach, dis- tribution period and distribution area; c) proof of the costs, broken down by individual cost factors and the profits achieved; d) invoices – or, if these are not available, delivery notes – and corre- sponding statements of account for all costs incurred which the De- fendant relies on in calculating its profits, whereby details requiring confidentiality outside the data subject to disclo- sure may be redacted and whereby the accuracy of which shall be verified and confirmed by a certified, sworn in auditor appointed by the Claimant, at the expense of the Defendants; whereby the auditor shall be granted access to the Defendant’s premises for the purpose of examining all relevant documents and whereby the au- ditor shall be bound to maintain confidentiality towards the Claimant with regard to all information provided to him beyond the scope of the above- mentioned information; 12 to provide the Claimant with the information referred to in II. 2 a) and b) for the territory of the Federal Republic of Germany and the French Repub- lic from 8 October 2009 until 6 January 2015. V. The Claimant is authorized at the Defendants’ expense, to announce and publish the decision in whole or in part in the following public media: For the Federal Republic of Germany in the Frankfurter Allgemeine Zeitung and in the newspaper Handelsblatt, and for the French Republic in Le Monde and Les Echos. VI. It is hereby declared that the Defendants are jointly and severally liable obliged to compensate the Claimant any damage (including interest) incurred as a result of the acts referred to in no. II. since 7 February 2015 and will incur in the future. VII. The Defendants are ordered as joint and several debtors, to pay the Claimant a sum of € 500,000.00 as provisional damages. VIII. The Defendants are ordered to bear the costs and expenses of the proceedings as joint and several debtors and to pay a provisional reimbursement of costs in the amount auf € 300,000.00 to the Claimant. IX. The Decision may be enforced as follows: 1. The orders referred to under No. II. 1 and II. 2 are directly enforceable. In the event of any breach of this order, the Defendant shall pay a penalty of up to € 10,000.00 per item and/or up to € 100,000.00 per day in the case of permanent breach such as offers on the internet. 2. The orders referred to under No. III, IV, VII, VIII are enforceable after the Claimant a) has informed the Court which part of the of the order it intends to enforce and after the notification has been served on the Defendants and/or b) the Claimant has submitted a certified translation of the orders into the official language of the Contracting Member State in which en- forcement is to take place and after the notification and, where ap- plicable, the certified translation has been served on the Defendants. 3. After the expiry of a period of 45 days after service pursuant to No. IX.2, the Defendant shall pay to the Court a penalty payment of up to € 100,000.00 per day of delay in the event of any breach of any of the orders referred to in No. III., No. IV., No. VII. and/or No. VIII. 20. Regarding injunctive relief due to direct infringement based on Claimant´s auxiliary requests reference is made to the submission of 1 September 2025. 21. The Defendants request that 1. the infringement action is dismissed; 2. the costs of the proceedings shall be borne by the Claimant; 15 36. Defendants argue further, […]. 37. […] 38. […] B. Claim Construction The features of claim 9 are identified here below in paragraph 86 with references 9 to 9.12.3, based on the feature identification in the statements of the parties. This feature identifica- tion was not disputed between the parties. 39. The Claimant states that it does not follow from claim 9 that the patent in suit requires the positioning engine (here after also identified as “PE”) to be a specific device which has all the components claimed. It can consist of a combination of hard- and software. The skilled per- son is aware that software components need not necessarily only be installed on a single piece of hardware, but can also be distributed decentrally over several devices. The position- ing engine can therefore be located on several devices, i.e. on the first target device, on the second device and possibly also on a third separate device. 40. The Claimant states that the positioning engine must have the means to form a positioning- assisting observation set (PAOS). Features 9.6.1. and 9.6.2. specify that these positioning- assisting signals (PAS) are exchanged beforehand between at least two signalling devices. The features do not specify a specific signal direction, i.e. in particular which signalling device sends and which receives. It is therefore irrelevant whether the first or second device sends or receives or which of the two units initiates communication. 41. The communication that takes place between the first target object and the second device is referred to in the patent in suit as a "positioning-assisting signal" (PAS). A "positioning- assisting observation set" (PAOS) is formed from these PAS. The PAOS is the sum of the ob- servations made for all PAS, i.e. the observations that indicate the location. The PAOS can consist of one or more such observations. Feature group 9.6. does not provide for a specific assignment of which signalling device sends the PAS and which receives it, because this is not necessary for the technical teachings (paragraph [0024]) (hereinafter: para.; paragraphs without citation are of the patent in suit). It is only important that the PAOS, to be formed from it, reflects the proximity between the first target object and the second device. For this purpose, it is irrelevant which device sends the PAOS to the PE. Nothing else results from the combination with feature 9.12 either. It only follows from feature 9.12. that the first preced- ing PAS (PPAS) originates from the first signalling device. This does not indicate which device generates the PAOS. Feature 9.12 does not refer to a PAOS. The fact that there can be several PAS is shown by the fact that a PAOS is formed from them. If there were only ever one PAS, then this further "summarising" step to form an observation set would not be necessary and would be technically superfluous, as the localisation could then always be based on one PAS. 42. According to the Claimant, the wording of the claim does not stipulate that the PAS are sent specifically for the purpose of determining the position and this is also supported in para. [0032]. The named techniques have in common that they are not primarily or exclusively for the purpose of determining position, but can also be used for this purpose. Furthermore, the Claimant refers to paragraph [0025], which explicitly mentions WLAN signals as a possible PAS. It is probably undisputed between the parties that WLAN signals are not specifically or 16 exclusively used to support localisation, but can also be used for data transmission in partic- ular. 43. The patent in suit also does not require in general that the signal strength of the PAS be measured in order to determine the distance between the first target object and the second object. 44. The claim does not determine how many PAS are sent and received. Feature group 9.6 merely specifies that a POAS is formed according to the Claimant from the sum of PAS. Since claim 9 specifies neither the direction of the signal transmission nor the number of PAS, it also does not specify which signalling device sends the PAOS according to the claim to the positioning engine. According to the correct interpretation, both the first and the second signalling device can send the PAOS to the positioning engine. 45. The position-dependent physical quantity is influenced by the position of the second device. This can be, for example, the strength of a WLAN signal. These observations of the environ- ment then allow conclusions to be drawn about the position of the second device. 46. The Claimant states that, if LPD1, LPD2 and PAOS are considered together, a location proba- bility distribution of the first target object can be updated (LPD1'). 47. Concerning the controller and its function, Claimant argues that claim 9 does not require that only one PAS be sent from the second device to the first device. Any number of PAS can be exchanged between the two devices, enabling a more precise location to be determined. Accordingly, the patent in suit also does not specify which signalling device generates the PAOS. The only requirements made by feature group 9.12 are that (1) the control device transmits a transmission request and (2) the first signalling device transmits the PPAS, which is received by the second signalling device. The first subsequently transmitted PAS estab- lishes the connection between the two devices. However, claim 9 does not specify whether the two signalling devices first exchange further PAS as part of this connection before a PAOS is created on the basis of them. 48. Since the positioning engine can correctly be divided into several signalling devices, it is pos- sible that the controller is located within the first target object. It is precisely this constella- tion that paragraph [0035] of the patent in suit provides for as a particular embodiment. Then the transmission request is not a signal coming from outside, but a component of the software in the first target object, which triggers a reaction there. 49. The Defendants argue that based on the description and claim 1 there can be no doubt that the “environment” in feature 9.1 relates to the “data model” and not to the “location-de- pendent physical parameter”. This interpretation would be used by the skilled person in light of the clearly incorrect formulation (“with of”) in feature 9.1 of the claim 9. 50. Moreover, the Defendants state that the patent in suit requires that the PAS be transmitted for the purpose of determining the position of a target object and that it have properties that are observable or measurable by the receiver and variable depending on the distance be- tween the signalling devices, which the receiver sends to the PE and which allow conclusions to be drawn about the relative position of the first target object in relation to the second target object. 51. According to claim 9 (feature group 9.12), the PE comprises a controller. This controller is designed to define an operating logic for transmitting a signal by the first signalling device, 17 whereby the actual transmission is preceded by a transmission request from the controller (feature 9.12.2). The signal from the first signalling device triggered by the transmission re- quest is referred to as a “preceding positioning-assisting signal” (“PPAS”), since the PPAS ‘precedes’ the PAS of the second signalling device and, accordingly, the PAS is sent “in re- sponse” to the PPAS (feature 9.12.3). PPAS) because the PPAS “precedes” the PAS of the second signalling device and, accordingly, the PAS is sent “in response” to the PPAS (feature 9.12.1). The first signalling device in turn receives the PAS and uses it to form the PAOS (see feature 9.6). In addition, the control unit is able to adjust the operation logic based on the generated PAOS with regard to the time interval between successive transmission requests from the control unit (feature 9.12.3). This means that there may be different (adjustable) time intervals between multiple transmission requests (and corresponding PPAS from the first signalling device). 52. Even if the PE is installed on several signalling devices, according to the Defendants this does not mean that the components of the PE (data model, reception and data processing means, and control unit) could be distributed across several different signalling devices. Rather, par- agraph [0031] of the patent specification explains the possibility that several signalling de- vices can function as independent PEs if they have the necessary means (which may be the case in particular with the cited resource-rich portable computers). Therefore, claim 9 re- quires a device that has all the claimed components of the PE. Claim 10 rather supports that interpretation then contradicting it. It relates to a computer program product which can cause a data processing system to implement the PE according to claim 9. Thus, the computer program does not represent the PE itself. Rather, it serves as the relevant software on an apparatus which (in combination with the software) represents a PE. The “means” as listed in claim 9 are not replaced by the computer program in claim 10 since these hardware com- ponents are necessarily required for the implementation of the PE. Finally, the necessary requirement for such a device is that it has the sufficient hardware to be used as PE. That is the reason why paragraph [0031] mentions the “powerful portable computers”. If the perti- nent system of signalling devices includes more than one powerful device, the underlying software for the PE can be installed on each of these power devices with the result of having a PE on more than one device. There is no indication in paragraph [0031] at all that the means required to implement the PE are distributed over different signalling devices. 53. Since the location determination according to claim 9 is based on the use of signals, appro- priate signalling devices are required that are located at the site of the target objects (“co- located”) and therefore serve as substitutes for the actual target objects. Since the PE deter- mines the positioning probabilities of the target objects, it is necessary to link the target ob- jects with the signalling devices located at the same position. For this purpose, feature 9.4 provides for appropriate means “(AT)” for linking. The patent specification defines these means as an “association table” that links the target objects with their signalling devices lo- cated at the same location (para. [0047]) which is therefore required. 54. According to feature 9.8 a location probability distribution for the first device has to be de- termined (LPD1). According to feature 9.9 an updated location probability distribution for the first device must be determined (LPD1’) based on LPD1, LPD2 and the PAOS. 55. The Defendants state that, observations relating to the signalling between the first and sec- ond signalling devices serve as the central mechanism for determining the position of the first target object by the PE. Accordingly, feature group 9.6 provides for the PE to receive a positioning-assisting observation set (“PAOS”) generated from a positioning-assisting signal (“PAS”). The PAOS is therefore a set of observations relating to a signal, that serves to assist 18 in position determination. Taking into account feature 9.12.1, the PAS must be a signal from the second signalling device to the first signalling device. Accordingly, the first signalling de- vice generates the PAOS according to claim 9 and transmits it to the PE. The PAS must be sent from the second to the first signalling device. The first signalling device creates the PAOS and the PE receives the PAOS from the first signalling device. 56. First, the association between target objects and signalling devices is not done by the PAS. Neither the wording of feature group 9.6 nor the description allows for such understanding. Rather, the means for the association are characterized by feature 9.4 and defined in the specification as the association table AT. Then, feature group 9.6 does not describe the “means for exchanging the signals”. Rather, it relates to the means for receiving a PAOS made from a PAS. This PAS is further characterized in features 9.6.1 and 9.6.2 as well as feature 9.12.1. The means for exchanging the PAS are not included in the PE, but in the signalling devices, namely, the second signalling device needs to have means for sending the PAS and the first signalling device must have means to receive the PAS. 57. It is also incorrect that the PE “must have the means to form a positioning-assisting observa- tion set (PAOS)” either. As just said, the PE is characterized by means for receiving a PAOS. This implies that the PAOS has already been generated when it is at the PE which excludes that the PAOS is “formed” by the PE. This understanding is not only clear from the unambiguous wording, it is also confirmed throughout the specification of the patent in suit. According to paragraph [0024], the signalling device which receives the PAS makes the PAOS and sends then PAOS to the PE. Finally, the Claimant alleges that features 9.6.1 and 9.6.2 would not specify a specific signal direction. While this might be true for features 9.6.1 and 9.6.2 taken in isolation, these features may not be interpreted without the remaining parts of claim 9. In particular, feature 9.12.1 determines a specific signal direction, namely that the PPAS is sent from the first to the second signalling device, which means that the PAS (in re- sponse) is sent from the second signalling device to the first signalling device. Feature 9.12.1 is a further characterization of the PAS in feature 9.6 (see the definite article “the” PAS in feature 9.12.1). Since a claim is to be interpreted as a whole, feature 9.12.1 may not be ex- cluded for the interpretation of feature group 9.6, which means that the claim provides for a specific signalling direction regarding the PAS. 58. Para. [0024] of the specification to which the Claimant is pointing relates to the broader con- text of the PAS in which no specific signalling direction is provided. This was also true for the claims as filed at first. However, by including feature group 9.12 into claim 9 as granted, this has changed. Feature 9.12.1 presupposes a specific signalling direction so that the embodi- ments in the description which do not contain the further limitations of feature group 9.12 cannot be taken into account for the question of signalling direction anymore. 59. However, feature 9.12.1 relates to a specific PAS (“the positioning assisting signal”, singular) which characterizes the PAS of which the PAOS is made according to feature 9.6. The claim language is absolutely clear in this respect. Accordingly, whether any further signals are sent between the devices is completely irrelevant. The claim requires one specific PAS that is sent in response to the PPAS sent by the first device. Accordingly, the only technically meaningful interpretation of feature group 9.6 in combination with feature 9.12.1 is that the PAS is sent from the second device to the first device. This understanding is also confirmed by claim 1 as granted which expressly mentions that the PAS is sent by the second signalling device to the first signalling device which sends the PAOS to the PE. There is no indication that the parallel apparatus claim 9 should be understood differently. We have explained that the PAS accord- ing to the patent in suit is “sent specifically to assist positioning” which is also reflected in 19 the term “PAS” (para. [0052]). Which technology is used for this purpose does not matter as long as the receiver of the signal can make observations on the signal characteristics which change with the relative position of the two signalling devices so that the PAOS reflects the “mutual proximity of the signalling devices”. C. Infringement 60. The Claimant states that the accessory devices, like earphones or smartwatches, as first tar- get objects within the meaning of the patent in suit connect to the contested embodiments (second device) via Bluetooth. Both devices therefore have Bluetooth signalling devices im- plemented in them which are mean for associating the first and second target object with a co-located first and second signalling device (feature 9.4) 61. Bluetooth signals also fall under PAS within the meaning of feature 9.6. Such a Bluetooth connection also exists between the accessories and the mobile device according to the un- disputed functionality of the "Find my Device" app. A first signalling device (feature 9.6.1) therefore sends the Bluetooth signal which is received by the other signalling device (feature 9.6.2). These signalling devices are also linked once to the mobile device and once to the accessory, such as the Pixel Buds. The Defendants' positioning engine also assumes that the two Bluetooth signalling devices are in the same position (feature 9.6.3). The PE also creates a PAOS from the sum of the Bluetooth data in order to be able to analyse the termination of the Bluetooth connection later (feature 9.6). 62. It is not necessary that certain parameters, such as the signal strength, have to be measured. The relative inference of the location of the first target object is achieved by the fact that both devices are spatially close enough to each other that a Bluetooth connection can be established. It is then possible to determine the location of the first target object in the vi- cinity of the second device. As no precise measured values or signal strengths are required, the individual PAS (Bluetooth signals) are sufficient to form a PAOS. 63. The Defendants argue that the Claimant lacks to submit information about the data model modelling the at least one location-dependent physical quantity of the environment. 64. They further argue that the alleged PE comprises an assignment table (“AT”) that links a sig- nalling device to a target device (feature 9.4). They accuse the Claimant not to mention such a link at all. The fact that the signalling devices themselves are supposed target objects is neither sufficient in this context nor that the signalling devices are supposed to be identical to the claimed target objections. 65. Accessories such as Google Pixel Buds, Google Pixel Smart Watches and Fitbit trackers - as the first devices within the meaning of the claim - are equipped with processors/controllers or other means for data processing which, inter alia, control the communication of the de- vice. This also includes Bluetooth signalling and connection. This controller of the first device is responsible for requesting transmissions to the Bluetooth chip to send the PPAS and all PAS-related signals from the first device according to an operational logic: The following sce- narios can be distinguished: The first device is not able to determine whether it is being "heard" by a second device. It is therefore unable to establish or maintain a Bluetooth con- nection. In this case, it periodically transmits Bluetooth advertising signals (PPAS). The other scenario is that the first device has established a connection with another device and sends 20 connection signals to maintain the connection. This can take place either at regular intervals or via a ping trigger from the other device. 66. The Defendants argue that, while Bluetooth signals could theoretically also be used to assist location determination and to determine the relative position of two devices, this is exactly not the case for the initial establishment of a Bluetooth connection between the accused device and the accessory device considering the “Find my Device” App. The signals ex- changed have the purpose of connection establishment and are not related to positioning assisting. 67. In contrast to the Claimant’s view, it is also not sufficient for a claimed PAOS to have two devices establish a Bluetooth connection. There are no characteristics of these signals that are observed which is required as the claimed PAOS. There is no specific determination of any location probability for the accessory device which would then be updated based on further information (namely, LPD2 and PAOS). In the “Find My Device” App, the location of the accessory device is equated with the location of the contested embodiment (mobile phone) in case of an existing Bluetooth connection. If there is no Bluetooth connection (be- cause Bluetooth is deactivated or the accessory device is outside the range of the Bluetooth signals from the mobile phone), there is no determination of any updated location distribu- tion based on a previous determination (LPD1) as well as the PAOS and LPD2. If there is no Bluetooth connection, there is no communication between the two devices so that observa- tions on signals between these devices are technically impossible, i.e. the use of a PAOS is technically ruled out. Receiving “no signals” is not a PAOS within the meaning of the patent in suit since the observations have to relate to a PAS. The current location of the mobile phone (LPD2) is not taken into account either when presenting the location at which the accessory device had been connected the last time. This shows that there is no update of any LPD1 at all. When the Bluetooth connection between the devices is disabled, the location of the accessory device which is presented in the “Find My Device” app does not change. There is no further determination regarding the location of the accessory device. Also, the “Find My Device” App does refer to any estimated location of the accessory device in case there is no Bluetooth connection. D. Validity I. Added matter 68. Defendants argue the subject matter of the independent claims as granted extends beyond the scope of the original application (WO 2009/122000 A1; Exhibit WK 4, hereinafter WK 4) as filed. 69. In particular, the Claimant does neither provide any basis for feature group 9.12 relating to claim 9 nor for feature 1.4.2 relating to claim 1. They argue that the only passage in the ap- plication dealing with the controller are paragraphs [0031] to [0035]. The only disclosure is a controller positioned in the first signalling device, which is a low-cost tag. This contravenes feature 9.12 saying the PE comprises the controller. With regard to the PE, the description of the application states that there are particular advantages if the PE is a centralized device that is independent of the signalling equipment (para. [0030], WK 4). Alternatively, the PE could also be installed in signalling equipment if this equipment consists of appropriately powerful portable computers. The tag is not such an equipment and it does not comprise any technical means to function as a PE. They state that, even if the PE would be considered to possibly be distributed, this does not necessarily mean that the controller is implemented 21 in the same distributed components, let alone is a part of the PE, as claimed. Para. [0030] simply points to the possibility that the complete PE can be installed on a signalling device or even on all signalling devices within a system, so that each signalling device has the full ca- pabilities of the PE. The whole description of the original application does not at any point even mention the possibility to split up parts of the positioning engine on different devices. 70. Defendants also challenge the support of feature 1.4 in the original application. Defendants state that feature 1.4.2 covers any number of signalling device associated with different tar- get objects. Claim 1 does not allow for an interpretation of an association between a target object and more than one signalling device. 71. Claimant contradicts that by arguing according to the wording of claim 9 and in the context of the description, the PE can be a distributed system (paragraph [0031] of the patent in suit). Accordingly, the PE can comprise both a central computer and components of the first and second signalling devices. The PE can also contain the first signalling device. The first signal- ling device can in turn have the control unit. This means that the PE can have the control unit. 72. The Claimant argues that the teaching of the application is that a signalling device is associ- ated with and co-located with a target object. It refers to “respectively” in feature 1.2. Thus, the combination of features 1.2 and 1.4.2 is that one signalling device is associated to and co-located with one target object. II. Other grounds for revocation 73. Defendants attack the novelty based on the documents US 2007/10191022A1 (Yanaghiara) (Exhibit D1, hereinafter D1), US 2007/0275730 A1 (Bienas) (Exhibit D2, hereinafter D2), WO 98/10307 A1 (Dupray) (Exhibit D3; hereinafter D3), US 2007/197229 A1, (Kalliola) (Ex- hibit D4, hereinafter D4) and US20008/0048914 A1, (Smith) (Exhibit D5, hereinafter D5). 74. Defendants´ attacks on inventive step are based on combinations of D1/D4/D5 and general knowledge; D4 and US 2007/0296633 A1 (Yanagihara II) (Exhibit D6; hereinafter: D6); D6 and US 2007/0139199 A1 (Hanlon) (Exhibit D9; hereinafter D9) and D6 and US 2006/0055537 A1 (Jackson) (Exhibit D 10; hereinafter: D 10), KR 100 754 548 (Wook 1) (Exhibit D 12, D 12a; hereinafter D 12), US 2001/0048746 A1 (Dooley) (Exhibit D 13; hereinafter D13), WO 2006/109954 A1 (Wook 2) (Exhibit D 14; hereinafter D 14) and general knowledge. 75. With regard to all other arguments put forward by the parties, reference is made to the writ- ten submissions and annexes, as well as to the recording of the oral hearing. 22 GROUNDS FOR THE DECISION: 76. The counterclaim for revocation is admissible and unfounded. The infringement action is ad- missible and unfounded as the contested embodiment does not infringe the patent in suit. A. International Jurisdiction 77. The Düsseldorf Local Division has international jurisdiction on the basis of Art. 31 and 32(1) (a), (e) UPCA and Art. 7(2) in conjunction with Art. 71b(1) of the Brussels I recast Regulation as the contested embodiments are (also) offered and distributed within Germany. The Court has international jurisdiction for the counterclaim for revocation on the basis of Art. 24(4) in conjunction with Article 71b(1) and 71a.2 sub a of the Brussels recast Regulation. The Düs- seldorf Local Division is furthermore competent according to Art. 33(1)(a), UPCA. B. Teaching of the Patent in suit and Claim Construction 78. The invention relates to techniques for determining a location estimate for a first target ob- ject in an environment comprising also a second target object and wherein at least one loca- tion-dependent physical quantity is influenced by the second target object and where an initial location estimate for the second target object is determined based on a data model of the at least one location-dependent physical quantity and on observations on the at least one-location dependent physical quantity. I. Prior Art 79. Known first target objects are usually ´tags` being operable to measure signal strength from one or more base stations in a WLAN and to relay the signal strength measurements to a positioning application. The term ´positioning engine` (PE) refers to a combination of a posi- tioning application and the computer apparatus which executes the positioning application (para. [0002]). 80. In order to estimate a tag’s position with sufficient accuracy and reliability, which typically means determining the room where the tag is located, the tag should repeat signal strength measurements with a sufficient repetition rate, such as with 10-second intervals or less and with sufficient scope, such that one observation (scan of measurable frequencies/ channels) includes signal strength measurements from five or more base stations. A large number of measurements is required because signal strengths are subject to strong random fluctua- tions even in cases where the tag stands perfectly still. The random fluctuations are typically caused by radio-frequency interference and persons or objects moving in the environment, thus causing temporary attenuation in signal propagation. The patent in suit critizises that, due to the fluctuations, some of the tag’s observations are incomplete, which means that signals from distant or heavily attenuated base stations could not be measured. An observa- tion which lacks signal strength measurements from several base stations may result in gross positioning errors. Such errors are best eliminated by observing several base stations with a high repetition rate (para. [0004]). Requirements to measure several base stations frequently tend to increase battery consumption in the tag (para. [0005]). 81. One strategy for extending battery life is to enable the tag to spend most of the time in sleep mode and configuring receive-respond-message system about scanning all pre-figured chan- nels and compiling the signal strength measurements from all base stations and sending these measurements to the PE which determines or updates the tag´s location estimate 23 (para. [0006]). The patent in suit critizises that the sleep mode causes problems in finding the tag during sleep mode. 82. Furthermore, the patent in suit identifies another problem in the fact that the bandwidth requirements of WLAN networks/some sections thereof may be adequately covered by one or two base stations but such a small number of observable base stations is insufficient for accurate and reliable positioning. According to the patent in suit, this means that although, in principle, the tags can be positioned by using signals of base stations which exist for the sake of communication, it is not uncommon that existing WLAN networks must be comple- mented by adding and/or relocating base stations to meet the requirements of accurate and reliable positioning. A further problem is that the effect of the added and/or relocated base stations is difficult to predict a priori, and the base station placement tends to require exper- imentation which in turn requires labour-intensive recalibration of the data model (para. [0007]). 83. Yet another positioning problem is caused by the fact that a tag’s measurements may be more or less permanently hindered by obstacles (para. [0008]), by the fact that that a tag may be in a place which has no WLAN network coverage (para. [0009]) or when using ad-hoc networks wherein only a few base stations are placed on fixed positions and the network clients communicate with each other in order to establish a communication network (para. [0010]). The patent in suit cites the document US 2007/0296633 A1 (D6) for disclosing a method and an apparatus according to the preamble of independent claims 1 and 9. 84. According to para. [0012], the object of the patent in suit is to develop a method, an appa- ratus and a software product so as to alleviate one or more of the mentioned problems. As a solution, the patent in suit presents the following method (claim 1), apparatus (claim 9) and a computer program product (claim 10), presented divided into features as proposed by the parties. 85. Claim 1 1. A method for determining a location estimate for a first target object (TO1) in an environment which also comprises a second target object (TO2); the method comprising: 1.1 maintaining a positioning engine (PE) which is operable to model at least one location-dependent physical quantity with a data model (DM) of the envi- ronment, 1.1.1 wherein the at least one location-dependent physical quantity is in- fluenced by the location of the second target object (TO2), and 1.1.2 wherein the positioning engine is operable to determine location probability distributions for the first and second target object; 1.2 associating the first and second target object (TO1, TO2) respectively with a co-located first and second signalling device (STR1, STR2), 1.2.1 wherein at least the second signalling device (STR2) comprises means for sending a positioning-assisting signal and 24 1.2.2 the first signalling device (STR1) comprises means for receiving the positioning-assisting signal and means for making observations on the at least one location-dependent physical quantity from the posi- tioning-assisting signal; 1.3 the positioning engine (PE) receiving observations on the at least one loca- tion-dependent physical quantity; 1.4 the second signalling device (STR2) sending a positioning-assisting signal (PAS1, PAS2), 1.4.1 wherein the positioning-assisting signal is received by the first signal- ling device (STR1) which makes a positioning-assisting observation set on the at least one location-dependent physical quantity from it and sends the positioning-assisting observation set to the position- ning engine (PE), 1.4.2 wherein said at least one of the signalling devices and said other sig- nalling device are associated and co-located with different target ob- jects; 1.5 the positioning engine (PE) making a quantity observation set based on the received observations on the at least one location-dependent physical quan- tity; 1.6 the positioning engine (PE) determining a respective first and a second loca- tion probability distribution (LPD1, LPD2) for the first and second target ob- ject (TO1, TO2), 1.6.1 wherein at least the second location probability distribution is based on the data model (DM) and the quantity observation set; 1.7 the positioning engine (PE) determining an updated first location probability distribution (LPD1') based on the first location probability distribution (LPD1), the second location probability distribution (LPD2) and the position- ing-assisting observation set on the at least one location-dependent physical quantity; 1.8 the positioning engine (PE) determining the location estimate for the first target object (TO1) based on the updated first location probability distribu- tion (LPD1'); 1.9 the positioning engine (PE) triggering a physical action based on the location estimate for the first target object (TO1); 1.10 characterized in that: the positioning assisting signal is sent as a response to a preceding position- ing-assisting signal sent by the first signalling device; 1.11 a controller defines an operation logic for sending the preceding positioning- 25 assisting signal and the preceding positioning-assisting signal is sent in re- sponse to a transmission request from the controller; and 1.12 the controller adjusts the operation logic based on the positioning-assisting observation set, wherein adjusting the operation logic comprises adjusting a time interval between consecutive transmission requests. 86. Claim 9 9.0 A positioning engine (PE) for determining a location estimate for a first target object (TO1) in an environment which also comprises a second target object (TO2) and wherein at least one location-dependent physical quantity is influenced by the location of the second target object; the positioning engine comprising: 9.1 a data model (DM) which models the at least one location-dependent phys- ical quantity with of the environment, 9.2 means for receiving observations on the at least one location-dependent physical quantity and 9.3 means for determining location probability distributions for the first and sec- ond target object; 9.4 means (AT) for associating the first and second target objects (TO1, TO2) re- spectively with a co-located first and second signalling device (STR1, STR2); 9.5 means for receiving observations on the at least one location-dependent physical quantity reflecting the location of the second target object (TO2); 9.6 means for receiving a positioning-assisting observation set made from a po- sitioning-assisting signal 9.6.1 which is sent by at least one of the signalling devices and 9.6.2 received by another one of the signalling devices, 9.6.3 wherein said at least one of the signalling devices and said other sig- nalling device are associated and co-located with different target ob- jects; 9.7 means for making a quantity observation set based on the received observa- tions on the at least one location-dependent physical quantity; 9.8 means for determining a respective first and a second location probability distribution (LPD1, LPD2) for the first and second target object (TO1, TO2), 9.8.1 wherein at least the second location probability distribution is based on the data model (DM) and the quantity observation set; 9.9 means for determining an updated first location probability distribution (LPD1’) based on the first location probability distribution (LPD1), the second 26 location probability distribution (LPD2) and the positioning-assisting obser- vation set; 9.10 means for determining the location estimate for the first target object (TO1) based on the updated first location probability distribution (LPD1’); 9.11 means for triggering a physical action based on the location estimate for the first target object; 9.12 characterized by the positioning engine further comprising a controller, wherein: 9.12.1 the positioning assisting signal is sent as a response to a preceding positioning-assisting signal sent by the first signalling device; 9.12.2 the controller is configured to define an operation logic for sending the preceding positioning-assisting signal and the preceding position- ing-assisting signal is sent in response to a transmission request from the controller; and 9.12.3 the controller is configured to adjust the operation logic based on the positioning-adjusting observation set, wherein adjusting the opera- tion logic comprises adjusting a time interval between consecutive transmission requests. 87. Claim 10 10. A computer program product for a data processing system, 10.1 wherein execution of the computer program product in the data processing system causes the data processing system to implement the positioning en- gine according to claim 9. II. Scope of protection 88. With regard to the dispute of the parties in particular claim 9 needs further interpretation. 1. Skilled person 89. The skilled person is an electrical engineer with a university degree and several years of expe- rience in the field of telecommunications and communications technology, who has dealt in particular with technologies for determining the position of mobile devices. 2. Claim 9 General structure 90. Claim 9 is a product claim protecting a position engine (PE). The PE is characterized by two main functional tools for determining the location estimate for a first target object (TO1) which is able to be moved in an environment (para. [0016]) like a tag or a (smart) watch or earphones: 27 First tool: Observations of the one location-dependent physical quantity (e.g. a sig- nal of a base station or a WLAN-signal) which reflects the location of the second target object (TO2). Although the patent in suit does not mention a smartphone as a TO2 – but rather TO2 receiving radio signals or infrared signals transmitted by an infra- red transmitter (para. [0018]) – it is undisputed between the parties that TO2 can be smartphone as well. Second tool: Observations about signalling between the first and the second signal- ling device which are associated with and co-located with TO1 and TO2 from which a position localisation of TO1 can be derived. 91. In terms of the claim, features 9.1, 9.2, 9.5, 9.7, 9.8 and 9.8.1 deal with the first functional tool and features 9.3, 9.4, 9.9, 9.10 and feature group 9.6 deal with the second functional tool. 92. Speaking of the first functional tool, the skilled person understands that the determination of a second location probability distribution (LPD2) based on the data model and the ‘quan- tity observation set’ (feature 9.8.1) is necessary as a variable for the determination of the location estimate for the TO1 based on the updated first location probability distribution (LPD1´) (feature 9.10.). 93. The at least one location-dependent physical quantity may be any physical value that can be observed and wherein the observed value is influenced by the location of the TO2 which is received by the PE (feature 9.5., para. [0018]). The influence of the second target object´s location on the physical quantity is modelled my means of a data model (feature 9 and 9.1). The PE can determine the location probability distribution for the TO2 by receiving observa- tions on the at least one physical quantity (feature 9.3 and 9.2, para. [0021]). From this re- ceived observations the PE makes a quantity observation set (feature 9.7). The patent in suit mentions in the description that the exact method is not essential as long as the quantity observation set is based on the received observations and therefore reflects the location of the TO2 (para. [0022]). The second location probability distribution (LPD2) is determined for the TO2 and based on the data model and the quantity observation set (features 9.8., 9.8.1). It is left to the discretion of the skilled person how to determine the first location probability distribution (LPD1) for the TO1 (feature 9.8). According to the description, any possible prior information regarding to the location of the first target object is expressed as the first loca- tion probability distribution (LPD1), e.g. the first location probability is based on expected locations of the first target object (para. [0023]). 94. The second functional tool consists in determining the location estimate for the TO1 based on the updated first probability distribution (LPD1´) (feature 9.10) which is based on the LPD1, the LPD2 and the positioning-assisting observation set (PAOS) (feature 9.9). The way the PAOS is created is one of the key elements of the patent in suit. The TO1 and TO2 are associated respectively with co-located first and second signalling devices (STR1, STR2) (fea- ture 9.4). This is specified in feature 9.6.3 by saying that at least one of the signalling devices and said other signalling device are associated and co-located with different target objects. The positioning-assisting observation set (PAOS) is made from a positioning-assisting signal (PAS) (feature 9.6) which is sent by at least one of the signalling devices and received by another one of the signalling devices (features 9.6.1, 9.6.2). According to the description, the recipient of the PAS creates PAOS from it and sends the PAOS to the PE (para. [0024]). 28 95. Finally, feature group 9.12 introduces a controller which starts the procedure of sending the PAS. According to this feature group, the PAS is sent as response to a preceding positioning- assisting signal (PPAS) which is sent by the first signalling device (feature 9.12.1). The PPAS is sent in response to a transmission request from the controller where the controller is con- figured to define an operation logic for sending the PPAS (feature 9.12.2). According to fea- ture 9.12.3, the controller is also configured to adjust said operation logic based on the po- sitioning-assisting operation set. Where feature 9.12.3 mentions a “positioning-adjusting ob- servation set”, the skilled person considers it as a typing error (see below para cf. 105 – 106). The correct wording is “positioning assisting operation set” (PAOS). Adjusting said operation logic comprises adjusting a time interval between consecutive transmission requests (para. [0032]). Feature 9 (PE) 96. According to the patent in suit it is not mandatory that every component of the PE (different means, the data model and the controller) is located in the same (signalling) device. The skilled person will understand that the PE can consist of a combination of hardware (e.g. the controller can be also a hardware component) and software (e.g. data model, means for de- termining location probability distributions). The software can be installed decentrally over several devices. The reference in para. [0031] to a centralized installation of the PE and the data model in a powerful portable computer in some embodiments, does not limit the claim to such embodiments. Beside that, these embodiments distinguish the PE and the data model whereas the wording of claim 9 (features 9 and 9.1), it is unambiguously disclose that the data model is part of the PE (´comprising`). Feature 9.1 (data model) 97. The skilled person understands that the data model contains the environment of the TO1 and TO2 where the one location-dependent physical quantity is modelled in. The wording of the claim is clearly erroneous because the “with” does not grammatically fit into the senc- tence so that the skilled person will ignore it. Para. [0045] supports that understanding: “[…] Figure 1 shows two exemplary base stations but reliable positioning in complex environments requires more than two base stations. The location-dependence of the signal parameters is modelled with a probabilistic data model DM of the environ- ment. Although the base stations are fixed, their precise locations need not be known. Instead the probabilistic data model DM indicates a probability distribution for the location-dependent parameters at several locations in the environment. […]” [emphasis added by the court] 98. According to para. [0020], the exact nature of the data model is not essential as long as the influence of the target´s object location on the quantity can be modelled by the data model with reasonable accuracy. Therefore, it is sufficient that the PE creates a model that reflects the environment so that the position can be determined on this basis. Feature 9.4 (means for associating/association table) 99. The patent in suit requests means for associating the TO1 and TO2 respectively with a co- located first and second signalling device (STR1, STR2). Contrary to Defendants´ view, this association does not have to be done only by an association table. Although the reference sign AT in the claim denotes an association table that links any target object to its associated 29 and co-located transceiver, the claim is not limited to that (para. [0047]). An association table is just an example of a possible mean. The reason for this feature is to link the target objects which can be e.g. instruments, equipment (para. [0016]) with co-located signalling devices. The signalling devices associated with the TO1 or TO2 may be similar or different devices (para. [0017]). In the context of the claim, the second functional tool (see above) is based on receiving and sending certain signals, therefore, the target objects need to be associated with signalling devices in order for the PE to know which signal is carried out by which target object. Feature 9.6 (PAS and PAOS) and feature group 9.12. (PPAS) 100. First of all, the wording of feature 9.6 is that the PE comprises means for “receiving” a PAOS “made from a PAS”, whereas the PAS is specified in features 9.6.1 and 9.6.2. Feature 9.6.3 just names the result of feature 9.4, because now the (one) signalling device (feature 9.6.1) and said other signalling device (feature 9.6.2) are associated and co-located with different target objects. 101. So, contrary to Claimant´s view, the claim does not stipulate that the PE must have means to “form” a PAOS. It just receives a made PAOS. This corresponds with the description stating that the recipient of the PAS makes a PAOS from the received PAS and sends the PAOS to the positioning engine (para. [0024]). The PAS and the PAOS are not defined as such by the pa- tent in suit. 102. Regarding the PAS, the patent in suit further clarifies that the positioning signal can be trans- mitted by using any of a wide variety of techniques, e.g. radio, microwave, audio, etc. (para. [0024] and that the PAS can also be based on WLAN signals (para. [0026]). Although the name “positioning assisting signal” indicates that the PAS is also transmitted for the purpose of determining the position of a target object, it is not limited to that. Para. [0052] (“these sig- nals are sent specifically to assist positioning”) is only a preferred embodiment. It is sufficient that PAS allows conclusions to be drawn about the positioning and therefore helps to make the PAOS. Even if there is no definition of the PAOS, the patent in suit describes in para. [0026] for what it is used: The PAOS is utilized by the PE when determining an updated LPD1´ (feature 9.9). In relation to measuring the strength of the PAS, the claim does not require a specific measurement in numbers. 103. According to para. [0024], the PAS can be sent from the first signalling device to the second signalling device or vice versa, as long as the PAOS reflects the mutual proximity of the sig- nalling devices. The patent in suit does not stipulate that signals are exchanged. It only stip- ulates that the PAS can be sent from the one signalling device or from the other signalling device. In line with that, feature group 9.6 does not specify which signalling device receives the PAS and which transmits it. But as for claim interpretation the context of the entire claim must be considered, feature group 9.12. also must be taken into account. A specific prede- termined sequence results from that feature, which is as follows: 1. a transmission request of the controller (feature 9.12.2) 2. the “preceding positioning-assisting signal” (“PPAS”) sent by the first signalling de- vice (TO1) (feature 9.12.2) as a response to the transmission request 3. the PAS sent by the second signalling device (TO2) in response to the PPAS (features 9.12.1, 9.6.1). 4. The first signalling device (TO1) in turn receives the PAS and uses it to form the PAOS (features 9.6.2; para. [0024]). 30 5. The PAOS is sent back to the PE (feature 9.6, para. [0024]). 104. Contrary to Claimant´s opinion, the claim is limited to this signal direction by feature group 9.12. In this context, it does not matter that features 9.12 to 9.12.3 do not address explicitly the PAOS. Feature group 9.12. describes all features ahead of forming/making the PAOS. 105. Where feature 9.12.3 mentions a “positioning-adjusting observation set”, the skilled person considers it as a typing error. The correct wording is “positioning assisting operation set” (PAOS), as agreed by the parties. Feature 9.12.3 shows that the operation logic defined by the controller (feature 9.12) for sending the preceding positioning-assisting signal (PPAS) is adjusted by the controller, based on the positioning-assisting observation set (PAOS), by ad- justing a time interval between two consecutive transmission requests (and the PPAS is sent in response to a transmission request). The patent in suit gives a concrete example in para. [0031] (bold type added by the Court): “A definite advantage can be achieved by implementing the controller and the op- eration logic in the tag, preferably in its firmware, so that the tag's scheduled wake- up time is adjusted according to the operation logic. Once the tag is activated, the controller sends a transmission request to a signalling module which causes trans- mission of a preceding positioning-assisting signal. The PDA receives this signal and responds by sending a positioning-assisting signal because PDA user has indicated a need to assist positioning of the tag, wherein the positioning-assisting signal re- ceived by the tag serves as a direct indication for the controller that the tag is being searched. The controller can then adjust the operation logic so that the wake-up interval of the tag is shortened, and this affects the time interval between consec- utive transmission requests accordingly. This way the location estimates can be up- dated much more frequently as the PDA approaches the tag and the PDA user will find the tag faster.” 106. The above interpretation is confirmed by the fact that in feature 9.12.3 “the” features before “positioning-adjusting observation set”, indicating that this notion is supposedly already mentioned in claim 9, which would not be the case, unless the skilled person considers it corresponds to the “positioning-assisting observation set” of feature 9.6. This interpretation is also supported by the method claim 1, in which feature 1.12 is the counterpart of feature 9.12.3. Feature 1.12 uses the wording ‘positioning-assisting observation set’ (POAS) as a basis for adjusting the operation logic. Features 9.8 and 9.9 (first and second location probability (LPD1, LPD2); determination of updated first location probability distribution LPD1´) 107. The skilled person understands that the PE comprises means for determining a respective first and a second location probability distribution (LPD1, LPD2) for the first and second tar- get object (TO1, TO2). Feature 9.8.1 only states that at least the LPD2 is based on the data model (feature 9.1) and the quantity observation set (9.7). This does not mean that the LPD1 does not have to be determined at all, but it is at the discretion of the skilled person how to do it. The LPD1 is necessary for determining an updated LPD1´ (feature 9.9). The updated LPD1´is based on LPD1, LPD2 and the PAOS (feature 9.9). 108. This understanding is in line with the description, para. [0026]: 31 “In an illustrative but non-restrictive embodiment determining the updated first lo- cation probability distribution comprises determining an additional location proba- bility distribution based on the positioning-assisting observation set and the second location probability distribution for the second target object. In some embodiments, determining the additional location probability distribution comprises using a signal propagation model to estimate the likelihood of the positioning-assisting observa- tion set for hypothetical locations of the first and second target object. In an alter- nate embodiment, the updated first location probability distribution is determined as a subset of the first location probability distribution wherein some of the locations indicated possible by the first location probability distribution are rejected based on proximity constraints identified from the positioning-assisting observation set. […]” 109. The description lists different options how the LPD1´can be set up. There are some embodi- ments which use the LPD1 as well. The claim obviously is limited to embodiments which in- corporate the LPD1 as an additional basis beside LPD2 and the PAOS. 110. Also para. [0050] and figure 3 show the relationship between the LPD1, LPD2 and the PAOS. “Figure 3 illustrates how positioning ambiguity in respect of the first target object T01 can be reduced or eliminated by using observations of the second target object T02. Reference numeral 33 denotes a positioning-assisting signal sent by target ob- ject T02 and received by target object TO1. Figure 3 shows the two-peaked location probability distribution LPD1 for the first target object TO1 which was described in connection with Figure 1. Figure 3 is based on a simplistic assumption, which will be discarded later, that the position of the second target object T02 (such as a PDA) can be determined accurately as a single point, denoted by reference numeral 31. It is possible to determine a perimeter 32 surrounding the PDA position 31, such that points along the perimeter indicate maximum-probability points for the tag T01 to observe a transmission from the PDA T02 at a given signal strength. Figure 3 shows the perimeter 32 as a circle or ellipse but the inventive principle is not restricted to any particular shape. The perimeter 32 effectively reduces the positioning ambiguity in respect of the tag T01 because the position of the tag T01 is restricted by both its own location probability distribution LPD1 and the perimeter 31. Thus the region surrounding the second local peak 13B is eliminated altogether and the region sur- rounding the first peak 13A can be reduced significantly.” 111. The Court agrees with Defendants´ understanding of Figure 3 of the patent in suit (displayed hereinafter, taken from Rejoinder, p. 18, colours added by Defendants). Figure 3 shows several areas with different location probabilities commonly forming LPD1. Furthermore, there is a location probability distribution for the second device (LDP2) which is typically a pretty accurate representation of the actual location of the second device. Based on the PAS between the signalling devices, the PAOS is made which provides for an estimated distance between the signalling devices represented by the perimeter 32. When considering LPD1 and the perimeter 32 (which is based on LPD2 and the PAOS), an updated location probability distribution for the first signalling device can be obtained. 33 the national patent register shall be treated as such for each Contracting Member State. Rule 42.1 RoP states that any action for the revocation of a patent shall be directed against the proprietor of the patent. The wording of the provision (“any action for the revocation”) also includes a counterclaim for revocation. This understanding is supported by Rule 25.1 RoP stating that the counterclaim shall be included in the statement of Defense against the pro- prietor of the patent for revocation of said patent in accordance with Rule 42 RoP. Rule 8.6 RoP takes precedence over Rule 8.5 RoP as Rule 8.5 stipulates “subject to paragraph 6”. 117. The Rules of Procedure show that in constellations where a claimant wants to obtain a deci- sion to remove the effects of a granted patent (be it the validity of the patent or the decla- ration that a specific act does not constitute an infringement) the law prioritizes the registra- tion over the entitlement. Ratio legis is the legal certainty for the claimant. It does not have the burden to “search” the entitled proprietor. It is for the registered proprietor and the entitled proprietor to apply to the Court for the substitution of the registered proprietor in a situation of non-identity (Rule 42.2, 61.2 RoP). In a revocation situation, the claimant's legal protection needs are not affected by whether the registered proprietor is entitled to hold the patent, as long as the requested decision results in the patent being revoked. 118. The situation may be different in a case of a counterclaim of revocation in which the entitle- ment of the registered person is effectively rebutted in the corresponding infringement ac- tion and the question of the entitlement is decisive for the infringement action. The reason lies here in the procedural dependency of the counterclaim. A defendant asserting invalidity is obliged to include a counterclaim against the proprietor of the patent pursuant to Rule 25. 1 RoP. If the presumption of the claimant´s entitlement to be registered is effectively rebut- ted and the entitlement must be investigated in detail for the outcome of infringement de- cision, the result of this investigation will be taken into account in the counterclaim as well. The requirements of an effective rebuttal have not yet been defined in detail by the Court, which is also not necessary in a case of non-infringement because then the entitlement is not decisive for the infringement action. And in such cases, the entitlement is also not rele- vant to the counterclaim as Rule 8.6 RoP prevails. 2. Case at hand 119. In the case at hand, at the time of filing the Counterclaim the German and French register show the Counterdefendant 2) as proprietor. In that moment, it was reasonable for the De- fendant to direct the counterclaim to both, the Claimant and Counterdefendant 2), to comply with Rules 25.1 and 42 RoP. During the proceedings the Claimant became the registered pro- prietor. The parties disputed the entitlement in the infringement action and in the counter- claim. In the case at hand, the Court finds no infringement (see cf. E below). As laid out above, the question of entitlement is thus not relevant for the Counterclaim. According to Rule 8.6 RoP the Claimant is the proprietor of the patent in suit and the Counterdefendant 2) is not/no longer the patent owner. Both the Claimant and the Counterdefendant 2) agree on this, as the Counterdefendant 2) had requested to order that it ceases to be a party in the counter- claim proceedings. II. Counterdefendant´s 2) request pursuant R. 305b RoP 120. The Counterdefendant´s 2) request pursuant R. 305b RoP is dismissed. 121. The register situation changed throughout the proceedings, and the question of who is enti- tled remained in dispute between the parties until the end of the oral hearing. It has only 34 been possible to conclusively assess whether this question needed to be clarified in detail once the judgment had been handed down. This meant that Counterdefendant 2) could not be removed from the proceedings beforehand. Now that the proceedings in the first instance have concluded, removal is no longer necessary, as the Counterdefendant 2) was part of the proceedings the whole time. 122. The Counterclaim against the Counterdefendant 2) is however unfounded because it is not the registered proprietor of the patent in suit any more (R. 25.1, R. 42.2, R. 8.6 RoP). III. Added matter 1. General principles 123. In order to ascertain whether there is added matter, the Court must first ascertain what the skilled person would derive directly and unambiguously using its common general knowledge and seen objectively and relative to the date of filing, from the whole of the application as filed, whereby implicitly disclosed subject-matter, i.e. matter that is a clear and unambiguous consequence of what is explicitly mentioned, shall also be considered as part of its content (CoA, Decision of 14 February 2025 – Abbott v. Sibio, CoA decision of 2 October 2025 – Expert Klein, CoA 25 November 2025 - Amgen v Sanofi). 2. Case at hand 124. Applying these principles, there is no added matter concerning feature group 9.12 relating to claim 9 or feature 1.4.2 relating to claim 1. Disclosure of feature 9.12 125. As the original application WK 4 provides basis for a distributed PE, the skilled person will derive directly and unambiguously from WK 4 that the controller can form part of the PE. By using its common general knowledge, the skilled person knows from the mere fact that parts of the PE are installed on a signalling device which also may include a controller that the PE as such comprises (at least) one controller. 126. The skilled person reads the application as a whole and therefore acknowledges at the very beginning in para. [0003] that the term positioning engine refers to a combination of the positioning application and the computer apparatus which executes the positioning applica- tion. Para. [0030] of WK 4 discloses that in some embodiments the positioning engine and the data model may be installed in some or all of the target objects' co-located and associ- ated signalling devices, such as powerful portable computers. Para. [0031] of WK 4 refers to some embodiments with a controller implementing features 9.12.1 to 9.12.3, without re- striction on its location. Claim 14 of WK 4 defines the PE also as one of the objects of the invention. From the entirety of the disclosure of WK 4, the skilled person understands that a controller belonging to a computer apparatus comprising a PE which is a combination of the positioning application and the computer apparatus. Disclosure on feature 1.4.2 127. The application WK 4 also discloses feature 1.4.2 (“wherein said at least one of the signalling devices and said other signalling device are associated and co-located with different target 35 objects”). 128. Claim 1 in the application refers to a method comprising the step “associating the first and second target object (T01, T02) respectively with a co-located first and second signalling de- vice (STR1, STR2)”. Reading features 1.2 and 1.4.2 of claim 1 of the patent in suit shows that, in combination of both features, one signalling device is associated to and co-located with one target object. Therefore, pairs of one signalling device and one target objects are formed. Reading the description of the application WK 4 refers in para [0078] to an association table linking the target objects with their associated and co-located transceivers. The wording of feature 1.4.2 in the patent in suit is consistent with that disclosure and can thus be derived directly and unambiguously from WK 4. IV. Novelty 1. General principles 129. A technical teaching is new if it differs in at least one of its features from what is known in the art. For lack of novelty to be found, each and every feature of the claimed subject-matter must be derivable directly and unambiguously from one single prior art document (UPC_CFI_252/2023 (CD Munich), Decision of 17 October 2024 – NanoString v Harvard Col- lege, Headnote 3; UPC_CFI_315/2023 (CD Paris), Decision of 5 November 2024, mn. 9.1 – NJOY v Juul Labs; see also CoA 25 November 2025, Meril v Edwards). Knowledge that a per- son skilled in the art only acquires as a result of further deliberation or by consulting further documents or by further use cannot be taken into account for novelty (see UPC_CFI_16/2024 (LD Düsseldorf), decision of 14 January 2025 – Orthovox v Mammut; UPC_CFI_7/2024 (LD Düsseldorf), decision of 3 July 2024 – Kaldewei v Bette). The question of novelty must be answered from the vantage point of the notional skilled person, taking into account this per- son´s common general knowledge at the relevant date. 2. Case at hand 130. Applying these principles, the Court finds that the patent in suit is novel. Novelty over D1 131. D1 discloses a method and a system for location estimation (see below figures 5 and 8, col- ouring added). 132. In para. [0026] of D1 the skilled person learns that the location estimator executes a first 36 estimation stage of finding out first estimated locations of the totality of the target terminals 10 specified by the transmitting terminal codes of the received location estimation infor- mation signals. By execution of the second estimation stage, the estimated location of the target terminal 10 is changed from the first estimated location to the second estimated lo- cation. Since the estimated location of one target terminal 10 is used for location estimation of the other target terminals 10, a change in the estimated location of one of the target ter- minals 10 affects location estimation of the other peripheral target terminals 10 (para. [0029] of D1). 133. According to para. [0042] of D1, the target terminal 10 receives the location estimation in- formation signals transmitted from other target terminals 10 (step S14). The target terminal 10 then measures the received power values Sl of the location estimation information signal received, and executes a second estimation stage of finding out a second estimated location of the target terminal 10 itself on the basis of the information on the received power values Sl, the first estimated locations of the other target terminals 10 included in the location esti- mations signals, the information on received power values Sl acquired from the location es- timation information signals received from the reference terminals 20, and the locations of the reference terminals 20 (step S15). The estimated location is found out by a method sim- ilar to one used in the above-described first estimation stage. The second estimated location, thus found, suffers from the estimation error to a lesser extent than the first estimated loca- tions, because the information transmitted and received between the target terminals 10 is now used. 134. D1 does not disclose features 9.9 and 9.12.3. 135. D1 describes that (in addition to information on the reference terminals) only and exclusively certain locations of other target terminals are to be used to determine the location of a spe- cific target terminal. There is no update from LPD1 to LPD1' (feature 9.9) but rather a com- pletely new determination of the location as part of a second step. The second estimated position is based on the power values S1, the first estimated locations of the other target terminals 10, on information on received power values acquired from the location estimation information and locations of the reference terminals 20 (see above in para [0042] of D1). 136. D1 does not show a use of the movement detection function in connection with the adjust- ment of the time interval between periodic position reports. Para. [0051] and [0053] of D1 disclose that an information of a terminal movement may be used for location estimation in dependence upon movement of a target terminal. The possibility of using a longer interval of periodic transmission of location estimation signals is based on the assumption that past information is used (see para. [0053]). This adjustment of the time interval is not based on a position-assisting observation set (feature 9.12.3), but on whether or not the past infor- mation is used. Novelty over D2 137. D2 discloses a method for determining the local position of at least one mobile radio com- munication device based on predetermined local positions of adjacent radio communication devices, an associated radio communication device and an associated radio communication system. See figure 1 of D1 below: 37 138. D2 does not disclose feature 9.12.3. Para. [0045] of D2 states the principle of setting a period for how much time is allowed for the second device to respond to a request signal. Para. [0060] of D2 states that no further message is exchanged if the message signals ISij, RISij include enough information. The message signals IS1ij (request signal) and RISij (radio inform) may be no longer exchanged at all. Para. [0060] of D2 therefore discloses that the transmission stops. The Court does not agree to Defendants´ argument that this corresponds to a change to an infinite time interval. In such a case, the time interval is not “between consecutive transmission requests” as there are no transmission requests any more. 139. Defendants´ further argue that according to the disclosure of D2, there is no fixed timing routine between the two transmission requests. Rather considering the programmable wait- ing times in D2, the skilled person understands that the time period between the transmis- sion requests is flexible and depends on the time at which responses are received and pro- cessed. But a flexible routine is no direct and unambiguous disclosure of adjusting a time interval between consecutive transmission request in the meaning of feature 9.12.3. Novelty over D3 140. D3 discloses the localization of a mobile station (see figure 5 below (colouring added). 141. Claimant rightly argues that feature 9.12.3 is not disclosed. 142. In D3 (page 74, lines 18 ff), the transmission power is raised to full power for a given period of time. This period of time varies depending on the quality of the base station infrastructure. The better the base station infrastructure is, the shorter the period of time with full power will be. This is no disclosure of an adjustment of a time interval between two consecutive transmission requests. It is rather an adjustment of a power level. D3 does not state that changing the duration of a full power time-period would change the starting point of such a 38 time period. Moreover, the parameter that determines the time period of full power (100 ms or 2 s) is the quality of the base station infrastructure, not a positioning-assisting obser- vation set. 143. When referring to the Appendix of D3 (p 117, 1.15 seq.), Defendants state it discloses that the timer which determines the time interval between location communication requests to the mobile station (MS) may be dynamically adjusted. In the example described there, the timer is adjusted depending on the perceived velocity of the target MS. Also, this passage does not directly and unambiguously disclose the adjustment of a time interval between consecutive transmission requests. Novelty over D4 144. D4 (US2007/197229A1) discloses a system and methods for direction finding using a handheld device (see Figure 13 and 15 of D4). 145. Features 9.9 and 9.12.3 are not directly and unambiguously disclosed in D4. 146. The shown WCD (wireless communication device, for example a cell-phone) can be a first target object T01 and a police car a second target object TO2. The WDC communicates with fixed stations (1010) and the police car (see para. [0096] of D4). Defendants argue that fea- tures 9.8 and 9.9 are disclosed in particular in para. [0092] and [0097] of D4. These passages relate to the update of the location distribution of the WCD. This update is made by triangu- lation with the position markers. 147. Defendants consider the case where the police car approaches within the range of the WCD and is added as a position marker (with a second location probability distribution). They state that this results to an update of the first location distribution (the one of the WCD). The Court does not agree. D4 discloses here an updated location distribution which is based on the position of the motion markers (fixed markers or police car). It is not based on the previous location distribution of the WCD (LPD1). D4 merely teaches here to calculate the own posi- tion on the basis on various position markers but not on the basis of the previous location. 148. Regarding feature 9.12.3, the Defendants rely on the end of para. [0081] of D4, which states that a packet repetition rate of a signal of a detected target (another emitter) may be changed based on a request of the WCD. This packet repletion rate (for instance one packet/second or 10 packets/second) is not a time interval between consecutive transmis- sion requests in the meaning of feature 9.12.3. The change concerns the frequency of the positioning-assisting signals (PAS), not an interval between transmission request made by the controller (here the WCD). Moreover, the change in the packet repletion rate is not based 39 on a positioning-assisting observation set. Novelty over D5 149. D5 deals with a wireless location and tracking system (see figure 1 of D5 below). 150. D5 does not disclose features 9.9 and 9.12.3. 151. For the disclosure of feature 9.9, the Defendants rely in particular on para. [0122], [0125] and [0075] of D5. Para. [0122] of D5 states that signal strength of other network monitors is measured. Para. [0125] of D5 states that the position estimate (i.e. the location distribution for the object 170) may be made by computing its position based on signal strength meas- ured as in [0122]. These passages do not disclose a computing based on a previous position estimate. In other words, there is no relationship directly and unambiguously disclosed sim- ilar to the one between LPD1’ and LPD1 specified in feature 9.9. Para. [0075] of D5 concerns the fact that environmental conditions are taken into account. It also does not state that the previous position estimate is used for the new position determination. Only an updated model is mentioned here. V. Inventive Step 1. General principles 152. According to the case law of the Court of Appeal, the approach taken by the Unified Patent Court when establishing inventive step is as follows (see UPC_CoA_464/2024, Decision of 25 November 2025, Headnotes 4 - 13, mn. 128 – 136 – Meril v. Edwards; UPC_CoA_528/2024, Decision of 25 November 2025, Headnotes 10 - 22, mn. 122 – 138 ff. – Amgen v. Sanofi): 153. It first has to be established what the object of the invention is, i.e. the objective problem. This must be assessed from the perspective of the skilled person (m/f – hereinafter referred to as ’it’), with its common general knowledge, as at the application or priority date (also referred to as the relevant date) of the patent. This must be done by establishing what the invention adds to the state of the art, not by looking at the individual features of the claim, 40 but by comparing the claim as a whole in the context of the description and the drawings, thus also considering the inventive concept underlying the invention (the technical teaching), which must be based on the technical effect(s) that the skilled person, on the basis of the application, understands is (are) achieved with the claimed invention. 154. In order to avoid hindsight, the objective problem should not contain pointers to the claimed solution. 155. The claimed solution is obvious when at the relevant date the skilled person, starting from a realistic starting point in the state of the art in the relevant field of technology, wishing to solve the objective problem, would (and not only could) have arrived at the claimed solution. 156. The relevant field of technology is the specific field relevant to the objective problem to be solved as well as any field in which the same or similar problem arises and of which the per- son skilled in the art of the specific field must be expected to be aware. 157. A starting point is realistic if the teaching thereof would have been of interest to a skilled person who, at the relevant date, wishes to solve the objective problem. This may for in- stance be the case if the relevant piece of prior art already discloses several features similar to those relevant to the invention as claimed and/or addresses the same or a similar under- lying problem as that of the claimed invention. There can be more than one realistic starting point and the claimed invention must be inventive starting from each of them. 158. The skilled person has no inventive skills and no imagination and requires a pointer or moti- vation that, starting from a realistic starting point, directs it to implement a next step in the direction of the claimed invention. As a general rule, a claimed solution must be considered not inventive / obvious when the skilled person would take the next step prompted by the pointer or as a matter of routine, and arrive at the claimed invention. 159. A claimed solution is obvious if the skilled person would have taken the next step in expec- tation of finding an envisaged solution of his technical problem. This is generally the case when the results of the next step were clearly predictable, or where there was a reasonable expectation of success. 160. The burden of proof that the results were clearly predictable or the skilled person would have reasonably expected success, i.e. that the solution he envisages by taking the next step would solve the objective problem, lies on the party asserting invalidity of the patent. A rea- sonable expectation of success implies the ability of the skilled person to predict rationally, on the basis of scientific appraisal of the known facts before a research project was started, the successful conclusion of that project within acceptable time limits. 161. Whether there is a reasonable expectation of success depends on the circumstances of the case. The more unexplored a technical field of research, the more difficult it was to make predictions about its successful conclusion and the lower the expectation of success. Envis- aged practical or technical difficulties as well as the costs involved in testing whether the desired result will be obtained when taking a next step may also withhold the skilled person from taking that step. On the other hand, the stronger a pointer towards the claimed solu- tion, the lower the threshold for a reasonable expectation of success. 162. When the patentee brings forward and sufficiently substantiates uncertainties and / or prac- 41 tical or technical difficulties, the burden of proof that these would not prevent a skilled per- son from having a reasonable expectation of success, falls on the party alleging obviousness. 163. The fact that other persons or teams were working contemporaneously on the same project does not necessarily imply that there was a reasonable expectation of success. It may also indicate that it was an interesting area to explore with a mere hope to succeed. 2. Case at hand 164. The above principles applied to the claims of the patent lead to the conclusion that the claims are not obvious. 165. The asserted obviousness of the claimed inventions over the asserted prior art documents D1, D2, D3, D4, D6, D12, D13 and D14 is discussed below, assuming that these can be con- sidered realistic starting points. Combination of D1 and common general knowledge 166. The Defendants only allege arguments why the feature 9.12.3 is rendered obvious in light of the common general knowledge but not concerning feature 9.9, which is also not disclosed in D1. Therefore, Defendants´ presentation is not sufficient to show how the skilled person would have arrived at the solution of claim 9 starting from D1. Combination of D2 and general knowledge 167. The Defendants argue feature 9.12.3 is rendered obvious starting from D2. The skilled person would be faced with the task to implement a timing or to set the timing in a way to efficiently use radio resources. D2 explicitly mentions that it aims to ensure that excessively long block- ing of the direct radio connection between the participating radio communication devices is avoided (D2, para. [0046]), according to Defendants. 168. The Court does not agree. It is not plausible why the skilled person, confronted with the D2 solution of non-fixed timing routine, is pointed/prompted by the citation in [0046] of D2 to adjust the flexible time period between two transmissions. This is not considered a pointer to adjust the time interval. Even if that could be the case, Defendants fail to show the skilled person would have adjusted the time intervals to arrive at the solution of feature 9.12.3 as a next step without using inventive skills. Combination of D3 and common general knowledge 169. Defendants argue that adding feature 9.12.3 to D3 is not inventive. It would be obvious to the skilled person to change the timing of the underlying requests, e.g. issuing a signal at the beginning of each period with a boosted power level. 170. There is no indication why the skilled person would be motivated to adjust the timing of the underlying request. 171. Defendants further state that in D3 the base station controls the signal transmission. If it performs a measurement for a longer time frame it will adjust the time interval of a full power transmission accordingly. If the mobile station continued to transmit signals without intervention by the base station the skilled person skilled would face the problem that the MS would transmit location signals at times in which no measurements of these signals take 42 place. This would cause unnecessary traffic and power consumption, which is to be avoided in mobile devices. Faced with this problem, in view of the explicit disclosure, according to which it is the base station that controls the full power signals of the MS and knowing that their time may be adjusted, the person skilled in the art would implement the embodiment in which a fast location estimate is followed by more accurate ones, in that full power trans- missions would be instructed by the LC/MBS for a short time initially and for longer periods subsequently, once a first location estimate has taken place based on the PAOS. The whole argumentation is flawed because it is completely hindsight in the light of the claimed solu- tion. Combination of D4 and common general knowledge (Bluetooth specification, version 5 November 2003, Exhibit D8) 172. As has been outlined above, D4 does not disclose features 9.9 and 9.12.3. Defendants´ argu- ments concerning inventive step are limited to the feature 9.12.3 and therefore are also not sufficient to show how the skilled person would have arrived at all features of claim 9 starting from D4. Combination of D6 and D4/D9/D10 173. As D4 does not disclose the feature 9.12.3 either, starting from D6 the skilled person would not have arrived at the solution of claim 9. 174. Since the combinations of D4 and D9/D10 are even more distant from the claimed invention, the Court refrains from a detailed discussion. Combination of D12/D13/D14 and general knowledge 175. The combinations of these documents are only mentioned briefly and not discussed in detail. Therefore, they are also not suitable to revoke claim 9 based on lack of inventive step. VI. Auxiliary requests 176. As the patent in suit is valid based on the main request, any further discussion of the auxiliary requests is obsolete. E. Infringement 177. The alleged infringement is unfounded, because the contested embodiments do not infringe the patent in suit. I. Entitlement 178. The Court can leave open the question whether the presumption, that the registered propri- etor is entitled to be the patent holder, is effectively rebutted (R. 8.5 RoP). As there is no infringement, the question of entitlement is not decisive. II. Direct infringement and PE (claim 9) 179. The Defendants do not infringe the patent in suit by offering or placing the contested em- bodiments on the market because they do not show every claimed component. 43 180. Claim 9, asserted for infringement, is a product claim. Even if the product consists of differ- ent components, the alleged infringing product must show every claimed component. Cases where only certain features of a product are infringed may be examples for an indirect in- fringement (Art. 26 UPCA), but not for direct infringement (Art. 25 UPCA). 181. According to the Claimant the contested embodiments are Defendants´ mobile phones and tablets that have pre-installed the Android operating systems and the location tools “Google Location Service” or “Google Location Accuracy”. The combination of mobile phones and accessories like earphones are not contested and thus not at issue in the infringement pro- ceedings. A direct infringement can therefore only exist if the contested embodiments them- selves show all the features of the claimed PE. This is not the case here. The contested em- bodiments undisputedly do not contain the controller which is located on the accessory de- vices, like earphones/watches. III. Feature groups 9.6. and 9.12 (PPAS, PAS, PAOS) of Claim 9 182. The Court finds feature groups 9.6 and 9.12 are not reproduced in the allegedly infringing embodiments. Claim 9 is therefore not infringed. 183. Based on the Court´s claim construction, the Claimant has the burden of presentation and proof for the facts that the contested embodiments contain a PE comprising means to re- ceive a PAOS, and show the claimed signal sequence in which the PAOS is formed and sent back to the PE. Based on its submissions and the oral pleading, the Claimant failed to do so. 184. Claimant argues that the PE creates a PAOS from the sum of the Bluetooth data in order to be able to analyse the termination of the Bluetooth connection later and also states that the individual PAS (Bluetooth signal) are sufficient to form a PAS. According to the patent in suit the PAOS is not created or formed by the PE, but received by the PE (feature 9.6). 185. The Claimant did not substantiate the claimed sequence laid out in feature 9.12. The Claim- ant makes a distinction between two scenarios: - a Bluetooth-connection cannot be established or maintained and therefore the first device periodically transmits Bluetooth advertising signals and - a connection is established and Bluetooth connection signals are sent to maintain the connection. 186. Even if the Court assumes in favour of the Claimant that sending more than one PAS signal is covered by the claim, both scenarios do not show the claimed sequence. It is not sufficient to state that exchanged Bluetooth signals are monitored and PAS-related signals and PPAS are somehow sent back and forth. Claimant fails to specify which device sends the PPAS, receives which PAS to use it forming the PAOS and sends back the PAOS to the PE, whereas, as discussed in 103 and 104 above, the claim only covers a PE whereby STR1 sends a PPAS and receives a PAS in return which is used to create a POAS. IV. Claim 10 187. For the same reasons as outlined above, claim 10 as a dependent claim to claim 9, is not infringed. 44 V. Review pursuant R. 333 RoP 188. Claimant requested to review the Order of the Judge-Rapporteur dated 14 October 2025 and to allow the claim amendments to include indirect infringement submitted on 1 September 2025. 1. Admissibility 189. The present request for review is admissible as the requirements of Rules 333.2 and .3 RoP have been met. 2. On the merits 190. However, the request is unfounded. 191. Claimant argues that it attacked the PE in the statement of claim and this also includes a controller located on the accessory devices for smartphones and tablets. This fact has been undisputed and therefore no further arguments are necessary to argue indirect infringe- ment. 192. This argument is flawed and misleading. The Claimant determined in its statement of claim (SoC) specifically which of Defendants´ products it challenges with the infringement action. It explicitly attacked the mobile phones of the Google Pixel series and the tablets only and not the accessory devices, which do not contain the controller. The Defendants already noted this in their Statement of Defence. Claimant misses the point by arguing that all relevant aspects of the indirect infringement have been discussed. Indirect infringement has different requirements as follows from Art. 26 UPCA, including a subjective knowledge component that must be presented to the Court. As no arguments for/substantiation of indirect infringe- ment was made during the written proceedings, these facts were naturally not presented. The front-loaded system of the UPC requires that such facts must be presented in the SoC in order to substantiate the request after it has been filed, so that the Defendants then can be properly heard regarding these facts. However, if these facts are filed late request, this re- sults in the need for new factual submissions that were not previously required. Then a jus- tification is necessary as to why these submissions should be admitted after all deadlines are expired pursuant to R. 263 and R.36 RoP. This is even more true in a case where the opposing party pointed out at the beginning of the proceedings (in the SoD) that indirect infringement was not asserted. Otherwise, the concept of the front-loaded proceedings outlined by the Rules of Procedure would be rendered obsolete. Claimant provided no justification for the late amendment of its case to include indirect infringement. The request is therefore dis- missed and the order of the JR of 14 October 2025 is confirmed. F. Decision on costs and ceiling 193. Pursuant to Art. 69(1) UPCA in conjunction with R. 118.5 RoP, a decision on costs has to be made. Since the Claimant has been unsuccessful in its action for infringement, it must bear the costs in this respect. As the Defendants are unsuccessful in relation to the counterclaim for revocation directed against the Claimant, they in principle have to bear the full costs. Although the counterclaim for revocation is also unsuccessful against the Counterdefendant 2), in the circumstances of this case it is justified to order the Claimant to pay 20 % of the costs of the Defendant in the Counterclaim. At the date of the filing of the Counterclaim, Counterdefendant 2) was the registered proprietor and therefore the right counterdefend- 45 ant (see above). It must be taken into account that in the course of the proceedings the pro- prietor's position remained in dispute and the Claimant's statements concerning the position in question initially appeared confusing and inconsistent. The Claimant was only able to clar- ify its statements after an order from the Judge-Rapporteur. So, it is fair that the Claimant bears part of the costs of the Defendants related thereto. 194. Pursuant to Art. 69(1) UPCA, the costs are to be borne up to a maximum amount determined in accordance with the Rules of Procedure. With a value in dispute of € 6,000,000 for the infringement action and of € 9,000,000 for the counterclaim of revocation, the table adopted by the Administrative Committee on April 24, 2023, on the basis of R. 152.2 RoP, which nei- ther party has objected to in the oral hearing, the maximum limit for reimbursable costs is determined at € 800,000. The total costs are to be distributed evenly over the claim and the counterclaim action. 46 DECISION AND ORDER: I. The order of 14 October 2025 of the Judge-Rapporteur is upheld and Claimant´s re- quest for revision is dismissed. II. The infringement action is dismissed. III. The counterclaim for revocation is dismissed. IV. The costs of the infringement action shall be borne by the Claimant. 80% of the costs of the counterclaim shall be borne by the Defendants and 20% of the costs of the counterclaim shall be borne by the Claimant. V. The value in dispute for the infringement action is set at € 6,000,000 and the value in dispute for the counterclaim is set at € 9,000,000. VI. The ceiling of recoverable representation costs is set at a total of € 800,000 for the infringement action and the counterclaim for revocation combined. Düsseldorf on 15 January 2026 NAMES AND SIGNATURES Presiding Judge Thomas Legally qualified Judge Dr Thom Legally qualified Judge Kokke 47 Technically qualified Judge Myon For the sub-registrar INFORMATION ON APPEAL: An appeal against this decision may be brought before the Court of Appeal by any party whose claims have been unsuccessful, in whole or in part, within two months of service of the decision (Art. 73(1) UPCA, R. 220.1 (a) RoP, 224.1 (a) RoP). INFORMATION ON ENFORCEMENT (Art. 82 UPCA, Art. 37(2) UPCS, R. 118.8, 158.2, 354, 355.4 RoP): An authentic copy of the enforceable order will be issued by the Deputy-Registrar upon request of the en- forcing party, R. 69 RegR. INSTRUCTION TO THE REGISTRY: A certified copy of the decision shall be sent to the European Patent Office and the German Patent and Trade Mark office as soon as the decision on the revocation action has become legally binding. This decision was read in open court on 15 January 2026. Presiding Judge Thomas

Key Holdings

• For direct infringement of a product claim, the alleged infringing product must contain all claimed elements.
• Indirect infringement claims must be clearly alleged in the Statement of Claim or in response to the defence, not introduced later.
• The Court interpreted the disputed claim more narrowly than the claimant, leading to a finding of non-infringement.
• The decision highlights the front-loaded character of UPC proceedings, emphasizing the need for thorough initial preparation.

Tags

• Claim Construction
• Front-loaded Proceedings
• Indirect Infringement
• Infringement
• Inventive Step

Related Cases

• UPC CFI 463/2023 – 10x Genomics, Inc. v Curio Bioscience Inc.
• UPC_CFI_1325/2025 – Van Loon v Inverquark
• UPC_CFI_115/2024; UPC_CFI_377/2024 – Hartman v Omni-Pac
• UPC_CFI_181/2025_July23 – Qiagen v bioMérieux
• UPC_CFI_315/2024 – Labrador v bioMérieux