UPC CFI 358/2023 – HEWLETT-PACKARD DEVELOPMENT COMPANY, L.P. v LAMA FRANCE

Expert Commentary

Full Decision Text

1 Paris Local Division UPC CFI 358/2023 Decision on the merits of the Court of First Instance of the Unified Patent Court handed down on 13/11/2024 ABSTRACT: 1. In accordance with Article 69 of the European Patent Convention (EPC) and the Protocol on its interpretation, this Court adopts the standard of patent interpretation established by the Court of Appeal of the UPC in two orders (UPC CoA 335/2023 and UPC CoA 1/2024). 2. The Court considers it appropriate, in French language proceedings, to examine all the arguments raised in relation to the interpretation of the patent with reference to the patent application as filed in English. 3. In order to be included in the state of the art and to lack novelty, the invention must be found in its entirety and in a single prior art of certain character with its constituent elements, in the same form, with the same arrangement and the same operation with a view to achieving the same technical result. 4. The Court considers that there is no need to apply national law in respect of acts of infringement occurring before 1er June 2023. The Court considers that it is irrelevant to refer to sources of national law when the sources of substantive law applicable before the UPC to define what constitutes an act of infringement are Articles 25 and 26 of the UPCA. 5. In the context of Article 29 UPCA relating to the exhaustion of rights, if an article drawn from competition law is invoked as a defence to the alleged infringement, the UPC will have jurisdiction to examine whether this exception is applicable in the case in question. 6. As the defence based on competition law is clearly inoperative, the question is therefore not necessary to the resolution of the present dispute. Consequently, the Court considers that the question does not need to be referred to the CJEU for a preliminary ruling in accordance with the provisions of Article 21 UPCA and Rule 266 of the RoP. 7. With regard to acts of direct infringement as defined by Article 25 UPCA, i.e. acts of manufacturing, placing on the market or using the infringing product, this text does not provide that the plaintiff must prove that the defendant had prior knowledge of the existence of the patent and the materiality of the alleged infringement. KEYWORDS : Infringement action with counterclaim for a declaration of invalidity, Interpretation of the claims, Extension of t h e subject-matter beyond the content of the claim, Novelty,2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 2 Enforcement, Interpretation of the claims, Interpretation of the claims, Extension of the subject-matter beyond the content of the claim, Novelty, Enforcement.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 3 knowledge, Exhaustion of rights, Inventive step, Sufficiency of description, Person skilled in the art, Questions referred to the CJEU for a preliminary ruling. APPLICANT HEWLETT-PACKARD DEVELOPMENT COMPANY, L.P 10300 Energy Drive, Spring, Harris County, TX, 77389, USA - 77389 - Harris County - US Represented by Grégoire DESROUSSEAUX DEFENDER LAMA FRANCE 241 Rue du Companet 69140 - Rillieux-la-Pape - FR COMPOSITION OF THE CHAMBER Represented by Henri BOURGEOIS Chairman and Judge-RapporteurCamille Lignieres Judge qualified in legal mattersPeter Tochtermann Judge qualified in legal mattersCarine Gillet Technically qualified judge Stefanie Philipps LANGUAGE OF THE PROCEDURE : French SUBJECT OF THE PROCEEDINGS: Infringement action and counterclaim for a declaration of invalidity DATE OF ORAL HEARING: 2 October 2024 DECISION The parties involved 1. HEWLETT PACKARD DEVELOPMENT COMPANY, L.P. (hereinafter "HPDC"), the plaintiff in the main action, is an American company that holds intellectual property rights. It is a subsidiary of the HEWLETT PACKARD group (hereinafter "HP") which designs and markets, inter alia, printers and ink cartridges for such printers.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 4 2. LAMA France ('LAMA'), the defendant in the main proceedings, is a French company set up in 1989 specialising in the wholesale of electrical components and equipment, which operates in the market for consumables compatible with printers. The company markets cartridges compatible with HP group printers. 3. HPDC holds two European patents, EP 1 737 669 and EP 2 089 230 (hereinafter referred to as "EP'669"). "and EP'230). Facts and procedure 4. On 13 October 2023, HPDC brought an infringement action against LAMA for patents EP'669 and EP'230 before the Paris Local Division of the Unified Patent Court (hereinafter "UPC"). This case is registered under number ACT 578697/2003. 5. HPDC limits the scope of its claims in respect of both EP'230 and EP'669 to the territories of the contracting Member States, to the exclusion of the territory of Italy, one action being pending, concerning a different defendant, before the Genoa court. LAMA does not object to this limitation. 6. No preliminary objections have been raised, in particular concerning the jurisdiction of the Unified Patent Court, the internal jurisdiction of the Paris Local Division or French as the language of proceedings. 7. LAMA raised two questions for a preliminary ruling pursuant to Article 21 UPCA and Rule 266 of the RoP, contested the acts of infringement of which it is accused and filed a counterclaim for invalidity of the patents. 8. HPDC rejected the arguments calling into question the validity of its two patents and made a subsidiary request to amend the EP'230 patent. 9. In this case, HPDC was ordered to provide information on invoices for cartridges imported from countries outside the EU. (UPC CFI 358/2023, LD Paris, 2 August 2024) The parties' requests 10. On 15 April 2024, HPDC filed its reply in response to the statement of defence and requesting invalidity of the patent and an amendment to the EP'230 patent, and then filed its final statement on 15 July 2024. 11. HPDC is making the following requests: -set the value of the dispute at between €500,000 and €1,000,000, -declare patents EP'230 and EP'669 valid, -Declare that LAMA FRANCE infringes patents EP'669 and EP'230 by manufacturing, importing, offering for sale, selling and putting on the market cartridges bearing print heads reproducing the subject matter of these patents as well as the cartridges imported in parallel without its consent, -requested that the infringement be prohibited, the products recalled, removed from commercial channels and destroyed, with a fine imposed in addition,2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 5 -request the disclosure of information relevant to the determination of its loss, subject to a time limit -order publication of the decision, subject to a penalty, -award interim damages of 100,000 euros to be settled in full, with the final amount of damages to be determined in separate proceedings, -reject all of LAMA FRANCE's claims. 12. In the alternative, HPDC requested, in its defence to the counterclaim for invalidity and reply to the defence, an amendment to claim 1 of the EP'230 patent. 13. LAMA filed its pleadings on 11 February 2024 (defence and counterclaim for a declaration of invalidity), 14 June 2024 and 15 August 2024. LAMA raises two prejudicial questions to be submitted to the CJEU, concerning on the one hand the jurisdiction of the UPC, for facts prior to the entry into force of the UPC, and on the other hand the exhaustion of rights and an abuse of dominant position by HPDC. 14. LAMA claims that the EP'230 patent is invalid on the grounds of insufficient description, extension beyond the scope of the patent application and lack of patentability, and opposes the subsidiary application to amend the patent on the grounds of insufficient description, extension beyond the scope of the application and lack of inventive step, having regard to the earlier patents EP 1 172 211 A2 and US2005/230493 A1. 15. LAMA is seeking the invalidation of patent EP'669 on the grounds of insufficient description, extension beyond the scope of the patent application and lack of patentability. 16. LAMA disputes the materiality of the infringement of the patents relied upon and opposes all of HPDC's claims in this respect. Presentation of the patents at issue Presentation of the EP'230 patent 17. Patent EP'230 (HPDC Exhibit 40) arises from an international application, filed on November 30, 2006 in the English language and issued on October 17, 2012 and is owned by HPDC. It is entitled "Fluid ejection device with data signal latch circuitry". The patent relates to an inkjet printing system and, in particular, to a fluid ejection device in an inkjet printer [0001], which includes a printhead. 18. The print head of such a printer has small electrical resistors which rapidly heat small volumes of ink, located in a vaporisation chamber, to enable them to be vaporised and ejected through the nozzles [0002], the assembly being supplied with energy by a power source and controlled by an electronic processor, receiving data [0003, 0011, 0012, 0016 to 0018]. As inkjet printheads have evolved, the number of drop generators has increased along with their power supply. A printhead with fewer input connectors costs less to manufacture, but a printhead with more input connectors guarantees better print quality and speed.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 6 19. The patent proposes to overcome these difficulties and make it possible to increase the number of fluid ejection nozzles, without increasing the electrical contacts required to control them, by offering an electronic architecture for controlling the ejection nozzles, which are grouped into groups of propulsion cells, each cell being controlled by a data signal, as a function of switches controlled by a clock system. The resistor is controlled, on the one hand, by a control switch, which may be a FET transistor, the base of which is connected to the memory circuit [0026] and, on the other hand, by a memory circuit, itself controlled by a data line, determining the pattern to be printed, and activation lines, making it possible to define the state of the control switch [0027]. The propulsion resistor receives a variable energy signal depending on whether or not the data has been activated and on condition that the switch is in the on state. The propulsion cells are grouped in rows and columns, forming groups of propulsion cells [0029 to 0033]. The cells in a row of a group of cells are activated by the respective activation lines. The state of the switch of each cell is conditioned by the contents of the memory circuit, supplied by the data lines [0034 to 0036]. The energy signal is supplied to the cells via the drive lines common to the cells in each group. It is possible to control the cell and the corresponding ejection nozzle more finely by using address and selection signals. Finally, to optimise the number of ejection nozzles, a data locking system is envisaged to optimise the use of the print head nozzles in relation to the number of electrical contacts. 20. The patent comprises 9 claims, including the main claim and dependent claims 2 to 6, and process claim 7 and dependent claims 8 and 9. 21. Claim 1 in English reads as follows : Claims 1. A fluid ejection device (22) comprising at least: a first group (402) of firing cells (150, 160, 180) the first group having a first fire line (124, 412), adapted to conduct a first energy signal including first energy pulses, data lines (DATAIN, ~D1--Dn, ~DC1-~DCn) adapted to conduct data signals that represent an image, each firing cell comprising latch circuitry to latch the data signals and first drop generators configured to respond to the first energy signal to eject fluid based on the latched data signals, a second group of firing cells the second group having a second fire line adapted to conduct a second energy signal including second energy pulses, data lines adapted to conduct data signals that represent an image, each firing cell comprises latch circuitry to latch the data signals, and second drop generators configured to respond to the second energy signal to eject fluid based on the latched data signals, wherein some of the firing cells of each group have switches (418) controlled by clock signals, the switches being arranged to allocate some data signals to the said some of the firing cells based on the clock signals, other data signals being otherwise allocated to others of the firing cells. 22. Claim 1 in French reads, according to the breakdown of features adopted by the Court, as follows : A1 Fluid ejection device (22)1 : A1.1 comprising at least a first group (402) of propulsion cells (150, 160, 180), A1.1.1 having a first propulsion line (124, 412), adapted to conduct a first energy signal comprising first energy pulses, and A1.1.2 data lines (DATAIN, ~D1-~Dn, ~DC1-~DCn) capable of c o n d u c t i n g data signals representing an image 1 For greater clarity, certain terms have been highlighted by the Court in bold type.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 7 A1.1.3 each propulsion cell comprising latch circuitry for latching data signals and first drop generators configured to respond to the first energy signal and to eject fluid based on the latched data signals A1.2 and a second group of propulsion cells, A1.2.1 having a second propulsion line adapted to conduct a second energy signal comprising second energy pulses and A1.2.2 data lines capable of carrying data signals that represent an image A1.2.3 each propulsion cell comprising latching circuitry for latching the data signals and second drop generators configured to respond to the second energy signal to eject fluid based on the latched data signals. A1.3 in which some of the propulsion cells in each group have switches (418) A1.3.1 controlled by clock signals, A1.3.2 the switches being arranged to allocate certain data signals to said certain drive cells on the basis of the clock signals, A1.3.3 other data signals being otherwise allocated to other propulsion cells. 23. Claim 7 in French reads, according to the breakdown of features adopted by the Court, as follows : A7 Method of operating a fluid ejection device (22), : A7.1 the fluid ejection device comprising A7.1.1 a first group (402) of propulsion cells (150, 160, 180) with features A1.1.1 to A1.1.3 and A7.1.2 a second group of propulsion cells with characteristics 1.2.1 to 1.2.3 A7.1.3 some of the propulsion cells in each group have switches (418) connected to a clock line A7.2the method comprises A7.2.1 conducting a first energy signal comprising first energy pulses via a first propulsion line (124, 412) to the propulsion cells of the first group A7.2.2 conducting a second energy signal comprising second energy pulses via a second propulsion line to the propulsion cells of the second group2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 8 A7.2.3 within each group, the routing of data signals via data lines, and A7.2.4 conducting a clock signal via the clock line to said switches of said certain cells A7.2.5 said switches of said certain propulsion cells allocating certain data signals to certain of the cells to be latched on the basis of the clock signals, others of the data signals being otherwise allocated to other cells to be latched. A7.2.6 the latch circuits receive the data signals, latch the data signals and respond to the energy signal to eject fluid based on the latched data signals. Presentation of patent EP'669 24. Patent EP'669 (HPDC exhibit 44), filed on April 6, 2005, is the result of an international application PCT/US2005/011399 published on November 10, 2005, under the priority of patent US 827139 of April 19, 2004, was granted on January 15, 2014 and belongs to HPDC. It is entitled "Fluid ejection device". 25. The patent comprises 17 claims, including main claim 1 and dependent claims 2 to 11, and main process claim 12 and dependent claims 13 to 17. 26. The patent relates to the electronic architecture of address generators for supplying data corresponding to the images to be printed by the print head of an inkjet printer. Its purpose is to respond to the technical problem generated by the increase in the number of ink ejection nozzles and the growing complexity of their control, which leads to high production costs. 27. The invention proposes to reduce the number of contacts required to activate a large number of ink ejection nozzles, by means of two address generators, coupled to two sets of drop generators, without impacting on printing speed. 28. The basic cells of the print head and their matrix organisation, as well as a preheating system, are described [0026 to 0037]. 29. The address generator of patent EP'669 is connected to the printhead; it supplies addresses to a matrix of cells (Figure 7) and comprises a shift register, a steering circuit and a logic table; it is controlled by timing signals (Figure 9) [0076-0077]. The operation of an assembly is described in the patent specification [0102 - 0122]. 30. The shift register contains thirteen cells which output signals sequentially to the logic array. 31. The steering circuit tells the shift register the order of the signals to be output [0078 to 0082], according to a synchronisation signal. 32. The logic board decodes signals received from the shift register to generate [0083] address signals. 33. Timer signals T1 to T6 [0153 et seq.] determine the activation sequence of the address signals according to the timer signals (Figure 11).2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 9 34. One example is shown in Figure 13. 35. Claim 1 reads as follows in its original English version : Claims 1. A fluid ejection device (22) comprising: a first fire line (214) adapted to conduct a first energy signal comprising energy pulses; a second fire line (214) adapted to conduct a second energy signal comprising energy pulses; a plurality of select lines to conduct timing signals, said plurality of select lines including a first select line and a second select line; a first address generator (1000) configured to provide first address signals based on timing signals received from said plurality of select lines; a second address generator (1002) configured to provide second address signals based on timing signals received from said plurality of select lines; first drop generators (60) electri- cally coupled to the first fire line and the first select line and configured to respond to the first energy signal to eject fluid based on the first address signals and a timing signal on the first select line; and second drop generators (60) electrically coupled to the second fire line and the second select line and configured to respond to the second energy signal to eject fluid based on the second address signals and a timing signal on the second select line. 36. Claim 1 in French reads, according to the breakdown of features adopted by the Court, as follows : B1 A fluid ejection device (22) comprising : B1.1 a first trigger line (214) adapted to conduct a first energy signal comprising energy pulses B1.2 a second trigger line (214) adapted to conduct a second energy signal comprising energy pulses B1.3 a plurality of selection lines for conducting timing signals, comprising a first selection line and a second selection line B1.4 a first address generator (1000) configured to provide first address signals based on timing signals received from said plurality of select lines B1.5 a second address generator (1002) configured to provide second address signals based on timing signals received from said plurality of select lines B1.6 first drop generators (60) electrically coupled to the first trigger line and the first select line and configured to respond to the first energy signal to eject fluid based on the first address signals and a timing signal on the first select line B1.7 second drop generators (60) electrically coupled to the second trigger line and the second select line and configured to respond to the second energy signal to eject fluid based on the second address signals and a timing signal on the second select line. 37. Claim 12 in French reads, according to the breakdown of features adopted by the Court, as follows : B12Process for operating a fluid ejection device (22) comprising : B12.1 generating first address signals in the fluid ejection device on the basis of timing signals on a plurality of selection lines with feature B1.32024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 10 B12.2 generating second address signals in the fluid ejection device on the basis of timing signals on a plurality of selection lines with feature B1.3 B12.3 receive a first energy signal comprising energy pulses on a first trigger line (214) B12.4 receive a second energy signal comprising energy pulses on a second trigger line (214) B12.5 respond to the first energy signal to eject fluid based on the first address signals and a timing signal on the first select line; and B12.6 respond to the second energy signal to eject fluid based on the second address signals and a timing signal on the second select line. SUBSTANTIVE REASONS CONCERNING VALIDITY I. Interpretation of the claims for the two patents at issue Man skilled in the art 38. In the present case, the Court accepts the definition proposed by the claimant in the main proceedings and not contested in the defence, that is to say, an electronic engineer, specialising in ink cartridge print heads, who is familiar in particular with the techniques of sequencing fluid ejection nozzles and controlling them, and who masters the electronic circuits for carrying out that sequencing. The principles of interpretation 39. In accordance with Article 69 of the European Patent Convention (EPC) and the Protocol on its interpretation, this Court adopts the standard of patent interpretation established by the Court of Appeal of the UPC in two orders (UPC CoA 335/2023 and UPC CoA 1/2024). 1) The patent claim is not only the starting point, but also the basis for determining the extent of European patent protection. 2) The interpretation of a patent claim does not depend solely on the strict and literal meaning of the terms used. On the contrary, the description and drawings must always be used to assist in the interpretation of the patent claim and not just to resolve ambiguities in the patent claim. 3) However, this does not mean that the patent claim serves only as a guideline and that its subject matter can extend to what, taking account of the description and drawings, the patent proprietor had envisaged. 4) The patent claim must be interpreted from the point of view of a person skilled in the2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 11 art.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 12 5) In applying these principles, the aim is to combine adequate protection for the patent owner with sufficient legal certainty for third parties. 6) These principles for interpreting a patent claim apply equally to the examination of infringement and the examination of validity of a European patent. This follows from the function of patent claims which, under the European Patent Convention, serve to define the scope of patent protection under Article 69 EPC and therefore the rights of the patent proprietor in the Contracting States designated under Article 64 EPC, while taking into account the conditions of patentability set out in Articles 52 to 57 EPC. II. Interpretation of the claims and examination of the validity of the EP'230 patent Interpretation of the claims of the EP'230 patent 40. As regards claim 1, certain points are disputed between the parties as to the interpretation of the claimed subject matter. 41. HPDC relied in particular on figures 4 to 8 to explain the claim, whereas according to LAMA these figures were explicitly referred to as an "unclaimed example", from which LAMA deduced that these figures did not relate to the claimed invention. However, the Court considers that, as Figures 4 to 8 form part of the description of the patent in question, there is no justification for disregarding them as a matter of principle and that they can therefore, where appropriate, be used to interpret main claim 1. 42. In the light of these factors, it should be pointed out that the Court considers that a person skilled in the art will understand the features which require interpretation as follows: -The terms "including" or "including at least" in features A1, A1.1.1, A1.1.3 and A7.1 : 43. These terms mean that the device is not limited to the components listed, i.e. they must be present but more components may be present. Also, this term in feature A7.2.1 and A7.2.2 is not limiting, so more steps in the procedure may be present. -The terms "suitable for" and "for" in features A1.1.1 to A1.1.3 and A1.2.1 to A1.2.3 : 44. These terms mean that the components of the device must be suitable for their application in the device. -The term "certain" in characteristics A1.3, A1.3.2, A7.1.3, A7.4.4 and A7.4.5 : 45. This means that it has not yet been determined in concrete terms which cells or signals are affected, so several options are open. The term "propulsion cells" : 46. A propulsion cell (70) comprises according to paragraph 0025 in combination with fig. 4 (see paragraph [0026]): - propulsion resistor (52)2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 13 - control switch (72) - and in the case of fig. 4 a memory circuit (74) 47. The gate of the control switch 72 is electrically coupled to the memory circuit 74 which monitors the state of the control switch 72. 48. Similarly, according to par. [0077] in combination with Fig. 9, a propulsion cell 150 is, in this case, a precharged propulsion cell. It also comprises a control switch (172), the propulsion resistor 52 and a memory cell. Reference is made to the description in para. [0077]: "Pre-charged firing cell 150 is similar to the pre-charged firing cell 120 of Figure 6 and includes drive switch 172, firing resistor 52 and the memory cell of pre-charged firing cell 120. This is confirmed by para. [0038] in combination with Fig. 6: "The gate of drive switch 172 forms a storage node capacitance 126 that functions as a memory element to store data pursuant to the sequential activation of a precharge transistor 128 and a select transistor 130." 49. The Court deduced from this that, according to features A1.1.3 and A1.2.3, "each firing cell comprising latch circuitry" is a translation error in French, and that it should read "comprenant un circuit de verrouillage", because the English language in which the patent was filed states "each firing cell comprising latch circuitry (in the singular, not the plural) to latch...". Thus, even the German translation of the claims states "wobei jede Zündzelle eine (une) Halteschaltung umfasst". The term "Droplet Generator" (A1.1.3 ; A1.2.3) : 50. A drop generator is a part of a propulsion cell and comprises according to [0019] the propulsion resistor 52, the nozzle/vaporization chamber 56 and the nozzle opening 34 (see Fig. 2 in connection with par. 0019). The term "Clock signals (A1.3.1, A1.3.2) : 51. It is common knowledge that a clock signal is a signal controlled by a fixed, pre-defined frequency. Examination of the validity of the EP'230 patent Inadequacy of the description of claim 1 52. This ground for invalidity is provided for in Article 138-1 b) EPC: "the European patent does not disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art;". 53. According to LAMA, the invention defined by claim 1 is not described in a sufficiently clear and complete manner for a person skilled in the art to be able to carry out the invention over the entire scope of the claim. In particular, LAMA submits that there are inconsistencies between the ex- posure of the invention and the wording of claim 1. As regards the groups and propulsion line and data line, LAMA points out (§ 104 of the statement of defence) that "the figures representing a propulsion cell, namely Figure 9 relating to propulsion cell 150, Figure 12 relating to propulsion cell 160 and Figure 14 relating to propulsion cell 180, show lines other than the propulsion lines and data lines2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 14 to which cells 150, 160 and 180 are connected". LAMA also points out (§ 115 and2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 15 116 of the statement of defence) that claim 1 defines a plurality of clock signals, and therefore implicitly a plurality of clock lines, and that this is inconsistent with claim 5, which refers only to a clock signal, whereas the disclosure describes only embodiments comprising a single clock signal (see descriptions [0092], [0100], [0102]-[0104] and Figure 10, clock line 420, DCLK signal). As regards latch cells and circuits, LAMA argues that the disclosure nowhere mentions any latch circuit, so that the person skilled in the art would not know (§ 122 of the defence) how to implement a propulsion cell that includes several latch circuits for latching the data signals, as claimed. 54. However, as stated above, the Court considers that Figures 4 to 8 form part of the description of the patent and can be referred to by a person skilled in the art. Those figures provide useful and sufficient explanations of the individual components of the claimed device. 55. As regards the defence argument that not all the lines described in the description of Figures 9 to 15 are claimed, the Court notes that this clarification is not necessary because the words "including at least" are expressly stated. A person skilled in the art will therefore find all the information he needs in the description of the patent, enabling him to reproduce the invention. 56. As regards the defence argument that claim 5 refers only to a single clock signal whereas claim 1 refers to "clock signals", the Court notes that the clock signals according to claim 1 refer to SWITCHES, each of which is controlled by a clock signal (cf. para. 0092 second sentence and Fig. 10: "each of the clock latch transistors 418a-418n is electrically coupled to a clock line 420 to receive the DCLK data clock signal"). According to paragraph [0094], penultimate sentence, clock latch transistor 418a (Fig. 10) is electrically coupled to data line 154 (Fig. 9) and data latch transistor 152 (Fig. 9) in each precharged drive cell 150 (Fig. 9) of the corresponding data line group. Thus, "the clock signal" according to claim 5 refers to the line 420/DC1/424a of Fig. 10, which is electrically coupled with the "DataIN" line 154 of Fig. 9 of all precharged propulsion cells in the same column or line group (see also par. [0095]). There is always ONE clock line per drive cell, which gives clock signals, but always a signal for locking or unlocking. 57. With regard to the "data clock line 190" in Fig. 14, the person skilled in the art will identify this line as corresponding to the clock line 420 in Fig. 10. 58. As for "DATASEL 170" in Fig. 12, the person skilled in the art knows from reading paragraph [0130] (first sentence) that each of the data selection lines 170 is electrically coupled to a precharge line, to a first clock (which is described in Fig. 10) or to a second clock. This does not mean that all the lines must be present at the same time. 59. A latch circuit is described in para. [0108] first sentence: "The drive cell circuit may include any number of clock latch circuits, such as the clock timing circuit (Fig. 10), for latching any number of data bits, such as 3 or 4 or more data bits, to each high voltage pulse in the precharge signal." But a latch circuit is not only implemented by a clock latch circuit. A latch circuit comprises a2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 16 one or more latch transistors (see Fig. 10). These may be transistors 418 in Fig. 10, but also a data latch transistor 152 in Fig. 9 [0078, 0105], a data latch transistor 162 (Fig. 12) [0126], or a latch transistor 184 (Fig. 14) [0153]. In all cases, if there is a latch transistor, there is also a latch circuit. 60. Consequently, the Court considers that the term "des circuits de verrouillage" in features A1.1.3 and A1.2.3 does not mean that several locking circuits must be present in a propulsion cell. Furthermore, as already explained above, the term "des" in French is an error in the translation of the patent filed in English. 61. As a result, LAMA fails to show that the description of claim 1 of EP'230 is insufficient. On process-independent claim 7 (and dependent claims 8 to 9): 62. The pleas concerning the inadequacy of the description which, according to LAMA, makes it impossible to implement the methods of claim 7 of the process (and its dependent claims 8 and 9) repeat the same arguments as those developed for claim 1, and these pleas will therefore be rejected by the Court on the same grounds. Extending the subject matter beyond the content of the application 63. This ground for invalidity is provided for in Article 138 (1) c) EPC: "the subject-matter of the European patent extends beyond the contents of the application as filed or, where the patent has been granted on the basis of a divisional application or a new application filed under Ar- ticle 61, if the subject-matter of the patent extends beyond the contents of the earlier application as filed;". 64. LAMA develops several arguments in support of this ground of invalidity concerning claims 1, 3, 4, 5 and 6 as well as claims 7, 8 and 9 of the EP'230 patent. 65. The Court considers it appropriate to examine all these arguments in support of the ground of invalidity with reference to the patent application as filed in English. (Exhibit 15 LAMA) -Claim 1 On the propulsion airframe : 66. LAMA argues that the application as filed by HPDC referred to a "pre-charged propulsion cell", whereas claim 1 as granted refers to a "pre-charged propulsion cell". "This is an unauthorised generalisation contrary to Article 138(1) c) EPC. 67. The description in the original application (p.24 l.28) states: "Pre-charged firing cell 150 is similar to the pre-charged firing cell 120. A cell 120 is shown in fig. 6, it includes a propulsion line. 68. According to LAMA, in claim 1 as issued, the supplement "pre-charged" is missing, because figs. 9, 10, 12 and 14 show pre-charged propulsion cells, and not simple propulsion cells. 69. However, the Court notes that, although these figures, which are only examples ("a schematic dia- gram illustrating one embodiment"), show a preload line, the line is nevertheless2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 17 is not necessary for the operation of a propulsion cell with characteristic A1.1.3 (or A1.2.3). 70. On the other hand, the patent application on page 2, line 25-27, mentions a general description: "One aspect of the present invention provides a fluid ejection device including a first fire line, a second fire line, data lines, latch circuitry, first drop generators, and second drop generators". However, this general description does not mention pre- loading. The said latch circuitry can be produced by each transistor, so precharging is not necessary. On the first/second group of propulsion cells : 71. LAMA claims that claim 1 as granted defines a first and a second group of propulsion cells, without any details on the arrangement of the cells, whereas figure 10 of the patent is the only figure forming part of the invention which represents a propulsion group, that the description thus does not describe in a generic manner a simple arbitrary group of propulsion cells, but a very precise matrix arrangement comprising a plurality of row sub- groups; in addition, the clock lock circuit 404 is inextricably linked to the control of the groups of propulsion cells, whereas there is no justification for isolating the "groups of propulsion cells" characteristic, which leads to a generalisation of the contents of the application as filed. 72. Contrary to what LAMA maintains, the Court considers that a person skilled in the art knows from reading the description that the subgroups form a matrix. As HPDC rightly pointed out in its reply to the statement of defence (§189), LAMA focuses on Figure 10, whereas that figure is part of a more general description that a person skilled in the art cannot ignore (illustrated in particular by Figures 5 and 7 in the application). 73. Regarding LAMA's criticism of the 404 clock latch, the Court notes that groups of cells are associated with a clock latch automatically if they are associated with clock latch transistors. The indication of the term "cir- cuit" does not change this. In all cases, if there is a latch transistor, there is also a latch circuit. On the terms "First/second group having (...) : 74. According to LAMA, the feature of claim 1 that the first/second group has a first/second propulsion line, data lines, and first/second drop generators has no basis in the application as filed. 75. However, as HPDC rightly points out (§199 and 200 of the reply to the statement of defence), LAMA interprets the verb "to have" in too strict a grammatical sense to de- scribe the link between, on the one hand, the groups of cells and, on the other hand, the propulsion lines, the data lines and the drop generators, whereas , the use of the verb "to have" in the context of claim 1 (in view of the description and in particular figures 3 and 5 which illustrate the invention) means the existence of a functional relationship (achieved by an electrical connection) and not a structural one (it does not mean that the elements listed are structurally in the group). 76. In fact, the Court notes that since the term "having" refers to a group of propulsion cells, which have the said propulsion lines, it makes no difference to the word "connected to", which refers to a propulsion resistor. The patent application (p. 12, l. 31-32) states: "The other terminal of firing resistor 52 is electrically coupled to a fire line 124...".2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 18 The person skilled in the art reads this indication as a synonym for a cell or a group of such lines. On the omission of the pre-loading line and the selection line in claim 1: 77. According to LAMA, all of the amendments made by HPDC to claim 1 in the 26 April 2010 response by omitting the pre-charge line, the selection line and the two separate address lines constitute an unauthorised generalisation. 78. On the contrary, as HPDC rightly points out, the Court considers that the teaching relating to the data line (on which Figures 9, 10, 12 and 14 elaborate to indicate the locking of data and their possible assignment on the basis of clock signals) is not specifically linked to the number of address and selection lines, only the general representation of an activation line is schematised in Figure 4 of the patent. No generalisation has therefore been demonstrated in view of the application constituting an extension of the subject matter compared with the application as filed. On the words "second group having a second propulsion line", and the words "the second group having data lines configured to conduct signals that represent an image": 79. LAMA claims that these features mentioned in claim 1 do not follow directly and unambiguously from the application as filed. 80. But the Court, for the same reasons as those given for the interpretation to be adopted in the context of claim 1 of the term "having", and because Figure 5 forms part of the description to which a person skilled in the art will refer in order to understand the invention protected by claim 1, rejects that argument as irrelevant. On the argument relating to the terms "locking circuits", 81. Reference should be made to the interpretation of the claim as adopted by the Court, which states that the plural mentioned in the French translation is an error in the translation of the patent into English, in order to justify that this argument is irrelevant. On the deletion of the characteristic "in order to provide data signals locked on the basis of at least one clock signal" : 82. In the application as filed, there is disclosed on page 2 l. 30-32 a fluid ejection device: "The data lines are adapted to conduct data signals that represent an image and the latch circuitry is configured to latch the data signals to provide latched data signals based on at least one clock signal." It is also described in claim 1. 83. Features A1.1.3 and A1.2.3 do not describe a device, but propulsion cells with such "latch circuitry". The term "controlled by clock signals" is found in feature A1.3.1. In addition, the term "to allocate certain data signals...based on clock signals" is found in feature A1.3.2. As a result, the terms "based on at least one clock signal" is not deleted from the patent as granted.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 19 On the words "cells in each group have switches": 84. According to LAMA, these terms mentioned in the plural in the French version of feature A7.1.3 do not derive directly and unambiguously from the patent application. 85. However, the Court rejected this argument, noting that the term "switch" in the English language version of the patent application was an indefinite term, not a plural term. Moreover, claim 5 of the application as filed mentions: "a third data switch (418a-418n)". On the words "switches controlled by clock signals": 86. These terms are mentioned in characteristic A1.3.1, they are not interpreted to mean that several signals must be present; the word "des" refers to the term "les com- mutateurs". On the terms "some of the cells in each group (...) other cells in each group", the terms "some data signals (...) other data signals", and the terms "other data signals otherwise allocated" : 87. According to LAMA, these features of claim 1 are not clearly disclosed in the patent application. 88. However, the Court notes, as HPDC rightly maintains (§ 210 of the reply to the statement of defence), that a person skilled in the art understands from the description associated with Figure 10 that : -it is not obliged to divide them equally between "certain" cells and "other" cells, - these "other cells" can have their data allocated "differently", either directly or by another clocking system; -Because of this "other" allocation of data, not specifically limited to direct communication from D1, ~D2 to ~Dn (of Fig. 10), it is justified to claim that in general it is "other" data signals that are allocated to these "other" data signals. "This does not constitute any new teaching for the professional. 89. Indeed, in the original application (p. 4 l. 25-27), it is stated: "It is to be understood that other embodiments may be utilized and structural or logical changes may be made without departing from the scope of the present invention". 90. Consequently, the terms "some of the cells (...) other cells" or "some signals...other signals" are not inextricably linked according to the examples in the figures. 91. In the light of these factors, none of the arguments put forward by LAMA to invalidate re- vendation 1 on the grounds of an extension of the subject-matter beyond the content of the application can be considered relevant. EP'230's other claims2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 20 92. The arguments developed by LAMA for invalidity on the basis of Article 138 (1) c) EPC in relation to claims 3, 4 and 6 dependent on claim 1 are merely an extension of those developed in relation to the subject matter of claim 1 and will be rejected on the same grounds as those relating to the main claim 1. 93. The same applies to independent process claim 7, which is analogous to independent product claim 1, and its dependent claims 8 and 9. 94. In conclusion, LAMA fails to show that the claims of the EP'230 patent should be invalidated within the meaning of Article 138 (1) c) EPC. Lack of novelty 95. Article 54 EPC defines novelty as follows: "An invention is considered new if it is not included in the state of the art. 96. In order to be included in the state of the art and to lack novelty, the invention must be found in its entirety and in a single prior art of certainty with its constituent elements, in the same form, with the same arrangement and the same operation with a view to achieving the same technical result. 97. In support of its application for a declaration of invalidity for lack of novelty, LAMA relies on document EP 172 211 A2 (hereinafter "document EP 211") which forms part of the prior art. (LAMA Exhibit 31) 98. This patent application, published on 16 January 2002, relates to inkjet printheads. 99. According to LAMA, EP'211 describes (paragraphs [0117]-[0137] and Figures 11-13) an inkjet printhead and Figure 11 shows in detail a left or right half of the printhead shown in Figure 13.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 21 100. Figure 12 shows chronograms of signals transmitted in the circuit shown in Figure 11 or 13.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 22 101. LAMA argues in its statement of defence (statement no. 2 at §383) that, in view in particular of figures 11-13 of EP'211, all the features of claim 1 of the EP 230 patent are disclosed as follows: - a first group of propulsion cells (paragraphs [0130], [0131], Figure. 13 - for example the Trx16+160-bit Heater Array group on the left, detailed in Figure 11), - the first group having a first propulsion line (line VH in Figure 11, for example for the left half of the circuit in Figure 13), suitable for conducting a first energy signal comprising first energy pulses ("Driving Pulse (VH, Current)" in Figure 12) - data lines (DATA1 corresponding to D1-D5, DATA2 corresponding to D6-D10 in Figure 11 for example for the left half of the circuit in Figure 13) capable of conducting data signals which represent an image (paragraphs [0118], [0123]), - each drive cell comprising latch circuits (5-bit Latch 102A, 102B in Figure 11 and for example on the left in Figure 13) for latching data signals (102A, 102B in Figure 11 and on the left in Figure 13 receive data signals DATA1, DATA2) - and first drop generators (paragraph [0120], H1-H160 resistors in Figure 11, 160-Bit Heater Array on the left in Figure 13) configured to respond to the first energy signal (VH) and to eject fluid on the basis of the locked data signals, - a second group of propulsion cells (paragraphs [0130], [0131], Figure. 13 - for example the Trx16+160-bit Heater Array group on the right, detailed in Figure 11), - the second unit having a second drive line (VH line in Figure 11, for example for the right half of the circuit in Figure 13) adapted to drive a second energy signal comprising second energy pulses ("Driving Pulse (VH, Current)" in Figure 12), - data lines (DATA1, DATA2 - D1-D10 in Figure 11 for example for the right half of the circuit in Figure 13) capable of conducting data signals representing an image (paragraphs [0118], [0123]), - each drive cell comprising latch circuits (5-bit Latch 102A, 102B in Figure 11 and for example on the right in Figure 13) for latching the data signals (102A, 10B in Figure 11 and on the right in Figure 13 receive the data signals DATA1, DATA2), - and second drop generators (paragraph [0120], resistors H1-H160 in Figure 11, 160-Bit Heater Array on the right in Figure 13) configured to respond to the second energy signal (VH) to eject a fluid on the basis of the latched data signals, - in which some of the drive cells in each group have switches (paragraph [0120], each cell comprises a logic gate A1-A160 in Figure 11), where an AND logic gate is implemented with transistors (which are components performing a switch function) controlled by clock signals constituted by the input signals N1-N16 of the AND logic gates. The output of each A1-A160 gate controls2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 23 directly the current flowing through the cell's heating resistor H1-H160. In addition, each logic gate A1-A160 receives as input one of the data signals D1-D10 generated from the data signals DATA1, DATA2 and one of the signals N1-N16 generated from the signals B1- B4. - other data signals being allocated to other cells in the drive cells. 102. With regard to the last two characteristics, LAMA states (§384, defence no. 2) that a first part of the groups of cells can be considered to receive a corresponding part of the data signals D1-D10 for the penultimate characteristic and the other groups of cells (second part) to receive the other data signals for the last characteristic. The first part of the groups of cells does receive a first part of the data signals D1-D16 allocated by a first part of the clock signals N1-N16, and the second part of the groups of cells does receive another part of the data signals D1-D16 allocated by another part of the clock signals N1- N16. 103. HPDC replied in substance (reply of 15 April 2024, § 168) that, in the light of the examination for grant before the EPO, it was clear that an important feature of the claim was the differentiated allocation of data for "certain" cells as opposed to the allocation of data to "other" cells (§ 168 of the reply to the defence). However, LAMA does not seriously justify any differentiated allocation of data, in particular on the basis of clock signals. HPDC disagrees with LAMA when the latter maintains that a clock signal would correspond to the signals provided at the AND input of reference A1 to A160 as shown in Figure 11 of EP'211, because according to HPDC, these AND gates receive signals N1-N16 from a decoder and D1 to D6 from a latch (5-bit LATCH). 104. In the light of those factors, the Court notes that EP'211 relates ꟷlike the contested patent EP'230ꟷ to ink-jet printheads (see the title and paragraph [0004] of EP'211, feature A1). According to the description of EP'211, paragraph [0004], a printhead has, as a component, small heating devices that communicate with nozzles to eject ink drops (drop generator according to the second par- tial of features A1.1.3 and A1.2.3). According to [0117], Figure 11 shows a circuit diagram of a printhead according to a first arrangement. The symbols H1 to H160 denote the drive resistors with a drive line connected to the power supply (VH), which are arranged in groups of 16 drive resistors (see paragraphs [0117], [0120] first sentence, [0128] first sentence). It should be noted that features A1.1.1 and A1.2.1 read in the language of the patent, English "Having a first fire line..." and "having a second fire line", so the concrete number remains undefined. Figure 11 shows two systems A and B, each with 80 drive resistors (see section [0121]). Transistors Q1 to Q160 act as control switches for the drive resistors, so that groups of drive cells are in place. In this way, features A1.1, A1.1.1, A1.2 and A1.2.1 are described. According to graph [0125] data of a 10-bit image give the information to the 10 heating devices which are connected to line N1 and selected by D1 to D10 (features A1.1.2 and A1.2.2). 105. Similarly, according to paragraph [0125], the heaters, which are connected to N1,2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 24 are controlled by the latch circuits 102A and 102B (first part of features A1.1.3 and A1.2.3). In the language of patent EP'230, which is in English, the first part of features A1.1.3 and A1.2.3 is referred to as "each firing cell comprising latch circuitry" and "each firing cell comprises latch circuitry", thus always referred to in the singular and not in the plural for the latch circuit. Thus, the first part of features A1.1.3 and A1.2.3 is also described in EP'211. 106. HPDC's main argument for maintaining that not all the features of EP'230 were disclosed by EP'211 is that this prior art document does not teach a possible differentiated allocation of data, in particular on the basis of clock signals. 107. However, the Court notes that, according to paragraph [0120], the "AND circuits" A1 to A160 derive a logic product from the outputs N1 to N16 of the decoder circuit 104 and the outputs D1 to D10 of the ENB circuit, which receives a "CLK" clock signal. In this way, circuits A1 to A160 represent switches controlled by a clock signal according to features A1.3 and A1.3.1, which are arranged to allocate certain data signals to certain drive cells on the basis of the clock signals according to feature A1.3.2. According to paragraph [0124], the data N1 to N16 are selected sequentially. Because of logic product on the basis of outputs N1 to N16 of decoder circuit 104, other data signals being otherwise assigned to other propulsion cells, disclosing feature A1.3.3. Furthermore, features A1.3.2 and A1.3.3 do not preclude the presence of both clock signals and other data signals at the same time. 108. In addition, the "AND circuits" each also represent a latch circuit according to the first parts of features A1.1.3 and A1.2.3, which is similar to circuit 404 of Figure 10 of EP'230. In view of Figure 10 of EP'230, said "switches (418)" of feature A1.3 are also connected with a DCLK clock signal and with other data signals D1-Dn. 109. Consequently, all the features of claim 1 of EP'230 are disclosed in EP'211. 110. It follows that the subject matter of claim 1 of EP'230 is not new in relation to EP'211. 111. As for the independent procedural claim 7, it is characterised by the same technical features as claim 1 which are set out above. The procedural steps are also represented in EP'211. 112. As the main claims are devoid of novelty, so are their dependent claims. 113. EP'211 therefore constitutes prior art from the outset, and main claims 1 and 7 and their dependent claims of EP'230 should be declared invalid. Examination of the validity of amended claims 1 to 9 of EP'230 114. In its brief of 15 April 2024, HPDC submitted a request for a conditional amendment (exhibits 82 and 82bis HPDC) of claims 1 to 9 as follows:2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 25 " 1. A fluid ejection device (22) comprising at least: a first group (402) of pre-charged firing cells (150, 160, 180) the first group having a first fire line (124, 412), adapted to conduct a first energy signal including first energy pulses, data lines (DATAIN, ~D1--Dn, ~DC1-~DCn) adapted to conduct data signals that represent an image, each pre-charged firing cell comprising latch circuitry to latch the data signals and first drop gener- ators configured to respond to the first energy signal to eject fluid based on the latched data signals, a second group of pre-charged firing cells the second group having a second fire line adapted to conduct a second energy signal including second energy pulses, data lines adapted to con- duct data signals that represent an image, each pre-charged firing cell comprises latch circuitry to latch the data signals, and second drop generators configured to respond to the second energy signal to eject fluid based on the latched data signals, wherein some of the pre-charged firing cells of each group have switches (418) controlled by clock signals, the switches being arranged to allocate some data signals to the said some of the pre-charged firing cells based on the clock signals, other data signals being otherwise allocated to others of the pre-charged firing cells. 2. The fluid ejection device of claim 1, wherein one of the first energy pulses includes an initi- ation time and an end time and one of the second energy pulses is initiated between the initi- ation time and the end time. 3. The fluid ejection device of claim 1, wherein the first fire line is electrically isolated from the second fire line. 4. The fluid ejection device of claim 1 (22), wherein each pre-charged firing cell (150, 160, 25 180) included: a firing resistor (52); a drive switch (172) configured to enable the firing resistor to respond to the energy signal; a first data switch (152, 162, 184) configured to receive a said data signal and to latch 30 the data signal to provide a latched data signal; and a second data switch (136) configured to receive the latched data signal and control the drive switch to enable the firing resistor to respond to the energy signal and heat fluid to be ejected based on the latched data signal. 5. The fluid ejection device of claim 4, wherein: in the said some of the pre-charged firing cells, the first data switch (152, 162) is configured to latch the data signals based on the clock signal; and in the said others of the pre-charged firing cells, the first data switch (152, 162) is configured to latch the data signals via a pre-charge signal. 6. The fluid ejection device of claim 5, wherein each of the said some 5 of the pre- charged firing cells comprises a third data switch (186) configured to pass the data signals to the first data switch based on the pre-charge signal.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 26 7. A method of operating a fluid ejection device (22), the fluid ejection device comprising a first group (402) of pre-charged firing cells (150, 160, 180) the first group having a first 10 fire line (124, 412), data lines (DATAIN, ~D1-~Dn, ~DC1-~DCn) adapted to conduct data signals that represent an image, each pre-charged firing cell comprising latch circuitry and first drop gen- erators configured to eject fluid, a second group of pre-charged firing cells the second group having a second fire line, date lines adapted to conduct data signals that represent an image, each pre-charged firing cell compris- ing latch circuitry and second drop generators configured to eject fluid based on the latched data signals, wherein some of the pre-charged firing cells of each group have switches (418) connected to a clock line, the method comprising: conducting a first energy signal including first energy pulses via a first fire line (124, 412) to the pre-charged firing cells of the first group; conducting a second energy signal including second energy pulses via a second fire line to the pre-charged firing cells of the second group; and within each group conducting the data signals via the data lines, and conducting a clock signal via the clock line to the said switches of said some of the cells, the said switches of the said some of the pre-charged firing cells allocating some data signals to some of the cells to be latched based on the clock signals, others of the data signals being otherwise allocated to others of the cells to be latched, the latch circuitry receiving the data signals, latching the data signals, and responding to the energy signal to eject fluid based on the latched data signals. 8. The method of claim 7, wherein latching the said some of the data signals comprises latching some of the data signals via the said switches subject to the clock signal, and latching the others of the data signals subject to a pulsed charge control signal to provide the latched data signals. 9. The method of claim 8, wherein latching the said some of the data 5 signals further com- prises passing the data signals via a pass switch (186) based on the pulsed charge control sig- nal." 115. LAMA challenges the validity of amended main claims 1 and 7 (defence no. 2 of 14 June 2024, §610), arguing that the addition of the specification that the propulsion cells of the first groups and the second groups are pre-loaded propulsion cells and that, in view of US'493 (US 2005/230 493 A1) which describes pre-loading lines (Figures 6 and 7), the claims are not inventive within the meaning of Article 56 EPC.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 27 116. The Court notes that the amendments to the claims consist in the insertion of the words "pre-charged" for "firing cells".2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 28 117. The document US'493 opposed by LAMA (LAMA exhibit no. 18) is a patent filed by HP and published on 20 October 2005 entitled "fluid ejection device". It is illustrated in particular by figure 6 as follows: Inventive step in relation to US'493 118. It is not disputed by the parties that pre-loading is part of the general knowledge of the person skilled in the art. Indeed, the person skilled in the art is familiar with this technology and can decide whether or not to use it. Preloading is therefore a matter of course for the person skilled in the art. 119. On a mere reading of US'493, which falls within the same technical field as that of the patent at issue and whose owner is also HPDC, a device was already taught in which there can be propulsion cells without preload (in figs. 4 and 5 of US'493), as there can be preloaded propulsion cells (in fig. 6 of US'493). 120. As a result, the addition of the words "precharge" in the amendment proposed by HPDC does not make it possible to validate the amended EP'230 patent in that this addition of precharge in this type of device was obvious to a person skilled in the art. 121. Claim 1 as amended is therefore invalid on the ground of lack of inventive step within the meaning of Article 56 EPC. 122. HPDC has not developed any specific arguments to demonstrate that the other dependent claims as modified would be valid in themselves.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 29 123. In conclusion, HPDC's application for a conditional amendment will therefore be rejected.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 30 124. Patent EP'230 will therefore be annulled in all its claims in the manner set out in the operative part of this decision. III. Interpretation of the claims and examination of the validity of patent EP'669 Interpretation of the claims of patent EP'669 125. This patent, like the EP'230 patent, seeks to increase the number of fluid ejection nozzles without increasing the number of electrical contacts required to control them (cf. EP'230 patent, paragraphs [0006] and [0007], EP'669 patent paragraph [0007]). 126. The skilled person for the EP'669 patent is the same as that defined for the EP'230 patent. 127. The parties are discussing the interpretation of several terms mentioned in the claims of patent EP'669, such as the term "selection lines" or the term "address generators". 128. The Court considers that : -the term "propulsion cell" as mentioned in the EP'230 patent and the term A "trigger cell" as mentioned in patent EP'669; -the term "propulsion resistance" mentioned in the EP'230 patent and the term The "trigger resistance" as mentioned in patent EP'669; -the term "propulsion line" as used in EP'230 and the term "trigger line" as used in EP'669. 129. The key figures for understanding the features of EP'669 are Figures 7, 8 and 13. Figure 8 is a time diagram illustrating the operation of a variant of the trigger cell array 200 (see par. [0061] of the description). 130. Figure 7 of EP'669 is as follows:2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 31 131. Figure 7 describes a first grid, which lays the foundation for subsequent grids. The description for Figure 8 also refers to Figure 7. A person skilled in the art will be able to read para. [0061]: "Fire groups 202a-202f are selected in succession to energize pre-charged firing cells 120 based on data signals ∼D1, ∼D2 ... ∼D8, indicated at 300. ∼D8, indicated at 300. ".... " Address signals ∼A1, ∼A2 ...~A7 at 304 are provided on address lines 206a-206g to address one row subgroup from each of the fire groups 202a-202f. ...he address signals ∼A1, ∼A2 ... ~A7 at 304 are set to one address, indicated at 306, for one cycle through fire groups 202a-202f. After the cycle is com- plete, the address signals ∼A1, ∼A2 ... ~A7 at 304 are changed at 308 to address a different row subgroup from each of the fire groups 202a-202f. The address signals ∼A1, ∼A2 ... ∼A7 at 304 increment through the row subgroups to address the row subgroups in sequential order from one to 13 and back to one. In other embodiments, address signals ∼A1, ~A2 ... ~A7 at 304 can be set to address row subgroups in any suitable order. 132. First, the description section at para. [0050] explains: "Subgroups of pre-charged firing cells 120 are addressed by providing address signals ∼A1, ∼A2 ... ~A7 on address lines 206a-206g. In one embodiment, the address lines 206a-206g are electrically coupled to one or more address generators provided on printhead die 40 (see fig. 2 [0020]). 133. Thus, the features of claim 1 describe networks for transmitting signals from several trigger cells. 134. The address generators 1000 and 1002 of features B1.4 and B1.5 are shown in Figure 13, each of which address generators 1000 and 1002 is similar to the address generator2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 32 400 of Figure 9 (see par. [0194]. One address generator is described in par. [0077] : "In the embodiments described below, address generator 400 provides address signals to fi- ring cells 120. In one embodiment, the address generator 400 receives external signals ... in-. cluding a control signal CSYNC and six timing signals T1-T6, and in response provides seven address signals ∼A1, ∼A2, ... ∼A7. "2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 33 135. In addition, para. [0077] gives the definition of an address generator: "Address generator 400 is one embodiment of a control circuit configured to respond to a control signal (e.g., CSYNC) to initiate a sequence". 136. The Court notes that the EP'669 patent defines an address generator as an (electrical) circuit arrangement that receives a controlled signal in order to send controlled and sequential signals to the trigger cells. The Court adopts the description of the function of the address generator proposed by HPDC in its brief of 15 April 2024, p. 33: "to multiply the address signals without multiplying the number of input connectors". Finally, the Court considers that a single transistor that latches a circuit is not an address generator within the meaning of the patent because it is not capable of providing such functionality. Examination of the validity of patent EP'669 137. LAMA seeks the annulment of patent EP'669 on various grounds: lack of sufficiency of description, extension of subject matter and lack of patentability for lack of novelty and inventive step. Insufficient description under Article 138-1 b) EPC 138. LAMA maintains that claim 1 of the patent is not sufficiently clear and complete for a person skilled in the art to be able to carry out the invention to the full extent of the claim, raising several points of criticism by arguing that it is impossible for a person skilled in the art to : - implement the invention without the pre-loaded lines, - implementing the invention in the case where a capacitor separate from the switch 172 is used as a memory element; - determine whether the technical characteristics specific to each selection line should be duplicated or pooled for one or more of the lines of the plurality of selection lines; - implement the address signals on the basis of timing signals received from the plurality of select lines, - implement the invention without the control signal or with additional signals, - implement the system with an electrical coupling between the selection line and the drop generator; - implement the methods of claims 12 to 17. 139. On the contrary, the Court is of the opinion that the person skilled in the art will find, on reading the patent, sufficiently clear and precise information to implement the invention. Thus, he will be able to find an example for address signals based on timing signals as described in para. [0077]: "In one embodiment, timing signals T1-T6 are provided on select lines (e.g., select lines 212a-212f shown in Figure 7)" and with the help of the illustration in Figure 7.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 34 140. With regard to the first criticism, preloading must be considered only as an option for the person skilled in the art. As the Court has already mentioned in relation to the EP'230 patent, preloading is obvious to the person skilled in the art. 141. As for the other criticisms, HPDC rightly points out (§154 of its brief of 15 April 2024) that the person skilled in the art will have no difficulty with the duplication or mu- tualisation of the selection lines because he is familiar with matrix operation. 142. Finally, more generally, as has already been said above in relation to EP'230, it is not necessary for a control signal to be claimed as long as the description gives examples in order to be able to perform the subject matter of the claims, which is the case in the description of EP'669. 143. As for the criticism relating to process claim 12, the person skilled in the art knows well how to assign the different steps to the different components of the device in the context of claim 1 and in the context of the description. On the extension of the object 144. LAMA argues that all of the claims of EP'669 should be invalidated because the claimed subject matter extends the scope of protection beyond what was indicated in the original application at the time of filing (LAMA's request in Exhibit 44). -Concerning claim 1 145. On the absence of support for "a plurality of select lines to conduct timing signals, said plurality of select lines including a first select line and a second select line": 146. LAMA points out that the feature "a plurality of select lines to conduct timing signals, said plurality of select lines including a first select line and a second select line" was introduced during the examination procedure without having any support in the description, in particular there was no mention of any timing signal that would be conducted by the select lines, and this timing signal is not mentioned in Figure 7. According to LAMA, the link between the timing signal and the selection lines was not explained in the original application. 147. HPDC essentially objects that the plurality of lines was already taught in the application in figure 4 completed by figure 5, and that this was also explained in the description in support of figure 13. 148. The Court notes that a timing signal which is conducted by the selection lines according to feature B1.3 is indeed mentioned in the original application (exhibit 44 LAMA), for example on page 67 l. 8-9: "The select line 1008a conducts select signal SEL 1 to address generator 1000, in one embodiment is timing signal T3 timing signal T6". 149. Furthermore, LAMA's argument that there is no link between the selection transistors and the selection lines is unfounded in that the original application already made this explicit in its description on page 13, l. 19-20, "The gate of select transistor 130 is electrically coupled to a select line 134 that receives a select signal". In any case, the person skilled in the art knows that a select transistor must be present if a select line is present. 150. This first argument in support of the extension of the object must therefore be rejected as irrelevant.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 35 Extensions associated with timer signals : 151. LAMA notes that claim 1 has been amended to add the following bolded features: "first address generator (1000) configured to provide first address signals based on timing signals received from said plurality of select lines; 152. a second address generator (1002) configured to provide second address signals based on timing signals received from said plurality of select lines. 153. In this respect, LAMA submits that, with regard to the original application, claim 1 lacks features such as the control signal, the control line and certain features of the address generator which are essential, as well as the coupling of the first (resp. second) drop generators to the first (resp. second) selection line, which would unduly extend the subject-matter of the patent. In support of this argument, LAMA claims that it is impossible to extract isolated features from the figures in the patent, and that these figures, in particular Figures 9 and 13, are inextricably linked. 154. HPDC correctly argues that the timing signals are related to the example shown in Figure 13 and that the example shown in Figure 9 is not inextricably linked to the teaching in Figure 13. 155. In fact, the Court notes that figure 13 explains, in combination with the indications in the description request - on page 67, l. 8-9 - all the features that LAMA claims are missing, such as the control signal, the control line or the characteristics of the address generator, as well as the coupling of the drop generators to the selection line. 156. It follows that LAMA's second argument is inoperative to show that claim 1 extends beyond what was included in the original application when the patent was filed. -Other demands 157. As the same objections raised by LAMA apply mutatis mutandis to dependent claims 2 to 11 as to the extension of the content beyond the claim as defined, these arguments will also be rejected on the same grounds as those relating to the main product claim.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 36 158. The same applies to process claim 12, which is constructed in the same way as product claim 1, and to its dependent claims 13 to 17. 159. In conclusion, LAMA fails to show that the claims of patent EP'669 should be invalidated on the basis of Article 138 (1) c) EPC. Novelty within the meaning of Article 54 EPC 160. In support of its application for a declaration of invalidity for lack of novelty, LAMA essentially relies on the following documents which form part of the prior art: - EP 0 678 386 B1 (Exhibit 33 & its translation Exhibit 33bis), European patent published on 19 February 2003 (hereinafter "EP'386"); - EP 1 128 324 A2 (Exhibit 21 & its translation Exhibit 21bis), European patent application published on 29 August 2001 (hereinafter "EP'324"); - EP 1 172 211 A2 (Exhibit 31 & its translation Exhibit 31bis), European patent application published on 16 January 2002 (hereinafter "EP'211"); - JP 3 408 113 B2 (Exhibit 32 & its translation Exhibit 32bis), Japanese patent published on 14 March 2003 (hereinafter "JP'113 document"); - US 6 176 569 B1 (Exhibit 34 & its translation Exhibit 34bis), US patent published on 23 January 2001 (hereinafter "US'559"); - US 6 543 882 B2 (Exhibit 30 & its translation Exhibit 30bis), US patent published on April 8, 2003 (hereinafter "US'882"); 161. The Court notes that, on the question of novelty, LAMA has developed its arguments only in relation to documents US'882, EP'324, EP'211, JP'113, EP'386 and US'569; the other documents are only cited and not developed. -Novelty of claim 1 with respect to US'882: 162. The patent, issued to Hewlett Packard Company in 2002, relates to a dynamic memory circuit for propulsion cells in a print head. 163. According to LAMA, all of the features set forth in claim 1 of EP'669 are disclosed in US'882. LAMA claims that claim 1 essentially relates to the embodiments described with reference to Figures 6 to 8 which are presented in US'882, and in particular the figure disclosing an address generator.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 37 164. HPDC essentially objects that no address generator is disclosed by US'882, that in fact in figure 6 of the document, no such address generator can be seen in the combination of the address 103 and selection 105 transistors of each trigger cell. 165. The Court agrees with LAMA that US'882 describes features B1, B1.1, B1.2, and B1.3 of claim 1, in particular in view of figure 6AB1.1 / B1.2 : - FIRE Z B1. 3SEL W - SEL Z 166. Further described in Figure 3A of US 882 are features B1.1 and B1.2, and in para. [0043] (of the translation): "Only one address line is activated at a time, allowing only the heating resistors in the associated row of trigger cells to be activated or triggered simultaneously." 167. Finally, paragraph. [0049] (of the translation) feature B1.3: "For convenience, such activation of the dynamic memory circuit is sometimes referred to as memory circuit or trigger cell selec- tion or addressing." 168. US 882 also discloses drop generators according to features B1.6 and B1.7 (see column 1 line 36-46 as well as column 5 line 9-15). 169. Like EP'669, US'882 shows address transistors (cf address transis- tor 103 in figure 6 of the document) as taught by figure 6 of EP'669. 170. However, the Court cannot follow LAMA's reasoning further, because in Figure 6 of US'882, the combination of address transistors 103 and selectors 105 of all the trigger cells cannot be considered an address generator of claim 1 within the meaning of features B1.4 and B1.5. Indeed, as explained above, an address generator is defined as an (electrical) circuit which receives a controlled signal in order to send controlled and sequential signals to the trigger cells. So a single transistor latching a circuit is not an address generator. The same applies to multiple transistors. US 882 does not disclose such a generator.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 38 which receives address signals and offers address signals. This document discloses only specific transistors. 171. Consequently, since US'882 does not teach features B1.4 and B1.5 of claim 1, it cannot destroy the novelty thereof. -Novelty of claim 1 in relation to EP'324 172. The patent, published in 2001, describes a print head comprising electrothermal transducers for producing discharge energy to discharge ink. 173. LAMA states that this prior art document teaches all the features of claim 1, particularly in view of Figures 3 and 4 thereof: 174. In particular, LAMA submits that since the claims of the EP'669 patent do not define any internal structure of address generators, the scope of claim 1 also includes address generators based on the use of decoders such as the "3-8 Decoder" decoders of Figure 3. 175. HPDC opposes this reasoning, arguing (§94 of the brief of 15 April 2024) that EP'324 does not disclose : - the use of address generators (features C.1.e and C.1.f), but describes the use of decoders to decode a preloaded image and a block of data ; - first and second selection lines which are both supplied to each address generator on the one hand, and supplied to the trigger line groups of the drop generators on the other; - In particular, EP'324's OHE1N, EHE1N, OHE2N and EHE2N lines are not provided to address generator applicants. 176. The Court does not agree with the interpretation proposed by LAMA regarding features B1.4 and B1.5. In fact, in view of Figure 4 of EP'324, a controlled signal is missing which2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 39 is transmitted on these circuit blocks. Furthermore, the decoders ("3-8 Decoder") referred to in Figure 3 of US'882, the actual operation of which is not explained in the document, cannot be assimilated to address generators having features B1.4 and B1.5 of claim 1 of EP'669. -Novelty of claim 1 in relation to the other opposing documents 177. HPDC argues in substance, on the lack of novelty with regard to the other documents opposed by LAMA, that none of these prior art documents discloses the address generator as claimed in patent EP'669 (§ 95 to 100 of HPDC's brief of 15 April 2024). -in the light of document EP'211 : 178. This document, which is a patent application, has been described in the part of this decision devoted to the validity of patent EP'230. 179. Referring to figures 11-13 of document EP'211, LAMA proposes to interpret the "DE- CODER 4-16", sign 104, as an address generator. However, it is described in para. [0124] of EP 211 as follows: "The signals B1 to B4 are input to the decoder circuit 104 which selects any one of the signal lines N1 to N16. In this case, N1 to N16 are sequentially selected". As a result, if there is an (electrical) circuit which receives a controlled signal in order to send controlled and sequential signals to the trigger cells according to the first parts of characteristics B1.4 and B1.5, EP 211 nevertheless lacks "on the basis of the timings" of signals B1 - B4. In fact, signals B1 - B4 are address signals, but there is no description of the timing signals for these signals in EP 211. 180. EP'211 is therefore not relevant to destroy the novelty of claim 1 of EP'669. -JP'113 document: 181. LAMA bases its reasoning on Figure 6 of JP'113, arguing that block 9 serves as an address generator. 182. However, LAMA does not justify why block 9 in this figure 6 would represent a first and a second address generator according to features B1.4 and B1.5 of claim 1. On the contrary, the Court considers that block 9 in figure 6 is not an address generator because it only selects blocks (R and r.) which enable the dependent control procedure of different printers to be selected and does not receive timing signals received from a plurality of selection lines. 183. Consequently, JP'113 does not disclose all the features of claim 1 of EP'699. -EP'386 document: 184. LAMA bases its reasoning on figure 11 of this document, claiming that block 46 serves as an address generator, but for the same reasons as those described for JP' 113, this block 46 cannot serve as an address generator according to features B1.4 and B1.5 of claim 1.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 40 185. The subject matter of claim 1 of EP'669 is therefore new in relation to EP'386. -in the light of US'569: 186. LAMA bases its reasoning on Figures 2 and 4 of US'569, claiming that numbers 316a-f and 316g-m in Figure 2 would represent a first and second address generator according to features B1.4 and B1.5. However, this interpretation of Figure 2 is not explained by LAMA. 187. On the contrary, the description of US'569 indicates in column 3 lines 40-46: "The control signals include first and second bank signals that are transferred from the controller 302 to the print head 304 on first and second bank control lines 314a and 314b. The control signals also include address signals that are transferred over an address bus 316. In a preferred embodiment of the invention, there are thirteen address lines 316a- 316m in the address bus 316. " A description of the timing signals according to characteristics B1.4 and B1.5 is missing. 188. Claim 1 of EP'669 is therefore new in relation to US'569. -The novelty of other claims 189. Claims dependent on claim 1 are necessarily new if the main claim is. 190. The same applies to process claim 12, which is constructed in the same way as product claim 1, and to its dependent claims 13 to 17. 191. In conclusion, LAMA fails to show that patent EP'669 lacks novelty. Inventive step within the meaning of Article 56 EPC 192. As a preliminary point, LAMA submits that there is no technical problem solved by all the independent claims in EP'669, and that the absence of a technical problem entails invalidity for lack of inventive step. To this end, LAMA states that the description of the patent in question does not support the assertion that the decoders used would be expensive circuit elements to avoid, since Figure 9 does not help to understand why an address generator would be less expensive than a decoder. (§649 of the statement of defence). In addition, LAMA maintains that EP'669 does not solve any technical problem with the address generator as claimed. 193. On the contrary, the Court considers that, as stated above in the presentation of EP'669, the problems posed by devices in the prior art are sufficiently described (see the description in paragraph [0007]), and that the solution is provided by a device and a process according to claims 1 and 12. -Inventive step for claim 1 In view of document US'882 combined with general knowledge or document EP'324 or with document EP'211:2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 41 194. According to LAMA, if we consider that in US'882 the address signals are not generated from the timing signals, then the person skilled in the art would have sought and found in EP'324 how to generate address signals to control the trigger groups, or in EP'221 which describes an address generator in parag. [0021] and Figures 3 and 6. 195. However, the Court does not follow this reasoning for the following reasons. -Regarding the combination of US'882 with the general knowledge of the skilled person, it has already been explained in the novelty part that this document does not disclose an address generator, and the skilled person finds no motivation therein to use an address generator as claimed in EP'669. -As regards the combination of US'882 with EP'324, as already shown in the novelty section, this document does not disclose an address generator. Therefore, there is no motivation for a person skilled in the art to use an address generator. Furthermore, this document does not disclose an address generator according to features B1.4 and B1.5. -Regarding the combination of US'882 with EP'221, EP'221 shows and describes an address generator (fig. 3 and column 5, lines 34-37, 43-54). However, it does not describe two address generators and there is nothing to encourage the person skilled in the art to use a second address generator. In view of US'882 combined with EP'898 : 196. This EP'898 document does not disclose an address generator, so a combination of these two documents is not obvious to the person skilled in the art. In view of EP'324 combined with EP'898 : 197. As already demonstrated in the section on lack of novelty, EP'324 does not disclose a controlled signal that is emitted on the circuit blocks. The same is true of EP'898. Also, the combination between these two documents is not obvious to the person skilled in the art. -Inventive step for the other claims 198. The dependent claims of claim 1 are necessarily inventive if the main claim is. As regards process claim 12 (and its dependent claims), which is constructed in a similar manner with the same technical characteristics, the lack of inventive step will not be upheld for the same reasons as those developed for claim 1. 199. In conclusion, LAMA fails to show that EP'669 lacks inventive step. 200. Consequently, none of the attacks on the validity of patent EP'669 put forward by LAMA in the present dispute is accepted by the Court.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 42 ON THE COUNTERFEIT of patent EP'669 HPDC 201. In its infringement claim, HPDC distinguishes between two types of products at issue: cloned HP cartridge printheads from manufacturers other than HP and from unauthorized third parties (so-called "clones"), and unauthorized parallel import cartridges (so-called "IPNAs"). 202. In its defence, LAMA contests the infringement charges brought against it. 203. First of all, LAMA raises a number of preliminary questions, followed by ex- ceptions relating to limitation periods, knowledge and exhaustion of rights, before challenging the probative value of the evidence submitted by HPDC and, on the merits, the very existence of the acts of infringement alleged by HPDC. Preliminary questions 204. LAMA has raised two questions for a preliminary ruling which it considers necessary in this case to refer to the CJEU in accordance with Article 21 UPCA and Rule 266 of the RoP, as follows. 205. The first question relates to events prior to 1er June 2023: 1) Can the Unified Patent Court hear and determine allegations of infringement dating from before its entry into force, when the principle of non-retroactivity is enshrined? 2) If the answer to question 1) is in the affirmative, can it rule on the basis of the non- retroactive UPCA Agreement? 3) If the answer to question 1) is in the affirmative and the answer to question 2) is in the negative, must it give judgment in accordance with the law applicable to tort arising from the application of EC Regulation No 864/2007, the so-called law applicable to non- contractual obligations (Rome II), and can it, in this respect, as a supranational court, give judgment in accordance with a single national law when its judgment, by virtue of Article 82 of the UPCA, is enforceable in any contracting Member State? 4) If the answer to question 1) is in the negative, must it refer the claimant to a higher court and must it designate the national court which has jurisdiction over facts prior to its entry into force? 206. The second set of questions relates to the exhaustion of rights and the abuse of a dominant position: 1) Does the Unified Patent Court have jurisdiction over acts of abuse of dominant position under Article 102 TFEU, and more generally over all claims based on competition law, including any related unfair competition, which necessarily have an impact on patent law? 2) If the answer to question 1) is in the negative, must it stay the proceedings pending a decision on competition law, including any related unfair competition that necessarily has an impact on patent law, by any national court or competition authority? 207. HPDC objects to these two questions being referred for a preliminary ruling on the grounds that they are neither necessary for the resolution of the present dispute nor appropriate.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 43 Question 1) relating to events prior to 1er June 2023 208. LAMA maintains that, in accordance with the European law principles of non- retroactivity of texts and legal certainty and its corollary, the principle of the protection of legitimate expectations, there is no legal basis in the UPCA that would allow the UPC to deal with facts prior to the date of its entry into force on 1er June 2023, whereas in the present case the infringement facts alleged by HPDC all predate that date. 209. HPDC contests this request on the basis of the following arguments: -The UPC is of general interest and the legitimate expectations of interested parties cannot be invoked since the liability of the perpetrator of such acts of infringement could already be en- gaged by virtue of European texts and each of the national laws of the Member States covered by the proceedings brought by HPDC against LAMA. -Since the UPCA was signed on 19 February 2013, it is impossible for LAMA to hide behind "unforeseeability" or lack of knowledge of the exact scope of the obligations imposed by this regulation, which comes into force in June 2023, in order to consider that the UPC does not have jurisdiction to rule on the facts invoked by HPDC. -Since the Court of First Instance has the choice of whether or not to pass on the prejudicial question raised, the Court is asked to dismiss LAMA's application, which is not necessary to the resolution of the present dispute. 210. Contrary to what LAMA maintains, the Court considers that there is no need to apply national law in respect of acts of infringement occurring before 1er June 2023. LAMA has not shown that the application of the substantive law of the UPCA to events occurring before that date would be contrary to the principle of legal certainty and its corollary, the principle of the protection of legitimate expectations. Indeed, in the territories of the Contracting States that signed the UPCA of 20 June 2013, the acts referred to in Articles 25 and 26 UPCA were already considered as infringements qualified as acts of infringement by European patent law (Article 69 EPC) or in the national laws of these States that were harmonised by Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights relating to infringements of existing European patents. 211. In addition, the Court points out that the question of the UPC's jurisdiction to try infringement acts that occurred before 1er June 2023 has already been decided by several local divisions as follows: "the UPC has jurisdiction over the infringement acts that began before 1 June 2023 and continued after this date and that are not covered by the period of limitations. This applies on the basis of Articles 3(c), 32(1)(a) and 72 UPCA" (UPC CFI 15/2023, Munich LD, Order of 29 September 2023, no. ORD 576863/2023 and UPC CFI 495/2023, Paris LD, Order of 11 April 2024, no. ORD 18817/2024 in ACT 596432/2023). 212. In the light of these factors, contrary to what LAMA claims, it appears that the point raised in question 1) concerning the jurisdiction of the UPC to rule on facts prior to 1er June 2023 does not in the present case need to be referred to the CJEU as a preliminary question in accordance with the provisions of Article 21 UPCA and Rule 266 of the RoP.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 44 Question 2) on the UPC's jurisdiction to hear cases of abuse of a dominant position under Article 102 TFEU, and more generally all claims based on competition law 213. LAMA argues that a defendant in a patent infringement action before the UPC must be able to invoke, on the one hand, Article 29 UPCA concerning the exhaustion of rights conferred by the European patent and, on the other hand, be able to invoke, in the event of a risk of market partitioning, the reversal of the burden of proof according to the CJEU Van Doren case law (CJEC, 8 April 2003, aff C-244/00, Van Doren). 214. Furthermore, on the basis of Articles 36 and 102 of the TFEU, LAMA maintains that HP, by retaining sole control over information relating to the origin of the cartridges sold, is abusing its dominant position on the printer cartridges market. LAMA concludes that HP demonstrates its intention to monopolise the market for replacement cartridges by prohibiting the use of third-party cartridges. 215. HPDC disputes the need to refer this question to the CJEU for a preliminary ruling, arguing that : -LAMA has not demonstrated the existence of a dominant position, an abuse based thereon or any impact on patent law, and that there are no pending antitrust proceedings, to HPDC's knowledge. -The UPC does not have jurisdiction to rule on these competition law issues. 216. In the context of Article 29 UPCA relating to the exhaustion of rights, if an article drawn from competition law is invoked as a defence to the alleged infringement, the UPC will have jurisdiction to examine whether this exception is applicable in the case in question. The legal framework 217. Article 29 UPCA - Exhaustion of rights conferred by a European patent "The rights conferred by a European patent shall not extend to acts concerning a product covered by that patent after that product has been placed on the market in the European Union by the proprietor of the patent or with his consent, unless there are legitimate grounds for the proprietor to oppose further marketing of the product. 218. Article 102 TFEU "Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market insofar as it may affect trade between Member States (...)". In this case 219. LAMA relies on competition law as a defence in order to obtain a reversal of the burden of proof in its favour relating to the existence of exhaustion of the patentee's rights, as a result of HP's initial marketing in the EU of cartridges which were then repackaged by third parties and placed back on the EU market.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 45 by LAMA. To that end, LAMA seeks to demonstrate that HP is abusing its dominant position on the printer cartridge market, in particular by not allowing third parties to identify the geographical origin of its cartridges. 220. However, LAMA cannot effectively demonstrate the existence of an abuse of HPDC's dominant position in the absence of a serious delimitation of the relevant market. Thus, LAMA merely cites press articles to argue that the printer market, which accounts for 50% of HP's turnover, would represent 38.8% of the total world market in the first quarter of 2023 (Exhibit 7 HPDC), and refers to the fact that HP is involved in consumer law disputes (Exhibit 8 HPDC). 221. As this defence based on competition law is clearly inoperative, Question 2 is therefore not necessary to the resolution of the present dispute. 222. Consequently, the Court considers that Question 2 does not need to be referred to the CJEU as a question for a preliminary ruling in accordance with the provisions of Article 21 UPCA and Rule 266 of the RoP. The statute of limitations for the alleged acts of infringement 223. LAMA raised the plea of limitation, arguing that each act of patent infringement is an instantaneous offence and each act of infringement constitutes a distinct fact, and that by virtue of the immediate application and non-retroactivity of laws, the limitation rule laid down by Article 72 UPCA cannot apply to facts occurring prior to its entry into force. 224. Article 72 of the UPCA - Limitation period "Without prejudice to Article 24(2) and (3), claims relating to all forms of financial compensation shall be barred after five years from the date on which the claimant knew or had reasonable cause to know of the last event giving rise to the claim. 225. The Court refers to paragraph 211 of this decision concerning the application of Article 72 UPCA. In the present case, HPDC became aware of the alleged acts of infringement at the earliest at the time of the purchase reports for the 2018/2019 and 2022/2023 campaigns and at the latest at the time of its legal action of 11/10/2023 before this Division. The latter is therefore entitled to claim compensation for events that occurred five years before the filing of the claim on 11/10/2023, i.e. since 11/10/2018. Getting to know each other 226. LAMA relies on Article 68 UPCA relating to damages and on the provisions of the French Intellectual Property Code to argue that the alleged infringer must have had prior knowledge of the existence of the patent and of the actual infringement. 227. However, it is not relevant to refer to sources of national law when the sources of substantive law applicable before the UPC to define what constitutes an act of infringement are Articles 25 and 26 of the UPCA. (cf §211 of this decision)2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 46 228. With regard to acts of direct infringement as defined by Article 25 UPCA, i.e. acts of manufacturing, placing on the market or using the infringing product, this text does not require the plaintiff to prove that the defendant had prior knowledge of the existence of the patent and the materiality of the alleged infringement. 229. It is therefore sufficient for the plaintiff to prove that the defendant is an economic operator who manufactures, places on the market or uses products protected by a patent, or imports or stores for one of these purposes, without the authorisation of the patent holder, in order to be classified as an infringer. 230. This is not in contradiction with Article 68 UPCA, which provides for financial compensation to be paid to an infringer "who has engaged in infringement of a patent knowingly or with reasonable grounds for knowing it", this means that the economic operator who commits the acts provided for in article 25 UPCA and who acts as a professional is deemed to know that he has engaged in an infringing activity, without any prior knowledge having to be proven, as he must keep himself informed of his competitors' patents. 231. In the present case, it has not been proven that LAMA is a manufacturer of the allegedly infringing cartridges. On the other hand, it is sufficiently demonstrated by the extracts from its website, by the invoices produced in the context of the request for disclosure of information and by the purchase records that LAMA imports ink cartridges from territories outside the EU and places these products on the EU market for professional resellers known as "retailers". "It was also found that some of these cartridges corresponded to the products allegedly counterfeited by HPDC. 232. Consequently, LAMA's plea of limitation will be dismissed. Exhaustion of rights for IPNA cartridges 233. LAMA claims that it should benefit from the exhaustion of rights exception provided for in Article 29 UPCA, arguing that the partitioning of the market results in a reversal of the burden of proof, so that HPDC, which has the burden of proof, does not prove the geographical origin of the allegedly infringing cartridges, that it is therefore not proven that those cartridges, which are repackaged, were not placed on the EU market for the first time by HP. 234. The Court refers to the reasons set out above in Question 2 on this exception provided for in Article 29 UPCA. 235. In the present case, there is no reversal of the burden of proof, and HPDC has provided sufficient evidence, as demonstrated below in the section devoted to "Proof of the geographical origin of 1ère the marketing of the cartridges, the subject of parallel imports (known as "IPNA")", to determine the criteria for the geographical origin of the allegedly infringing cartridges: Thus, in particular, the commercial references for each type of cartridge, known as the "SKU code", are known to the public and the information concerning the geographical areas for each type of cartridge is mentioned on the HP public website. 236. Consequently, LAMA does not justify that it can benefit from the exception of exhaustion of rights provided for by article 29 UPCA, and this exception will be rejected.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 47 Proof of infringement2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 48 237. As LAMA contests the probative value of the evidence submitted by HPDC, the Court must first examine this point of contestation before ruling on the question of whether HPDC has sufficiently demonstrated the existence of the alleged acts of infringement in respect of both the so-called "clone" cartridges and the so-called "IPNA" cartridges. Challenges to probative value -the evidential value of purchase reports -Purchases in 2018/2019 (IPNA cartridges) : 238. LAMA challenges the validity of the purchase and receipt reports for the online purchases of December 2018 and January 2019, arguing that the third party who placed the order did not pay with his own means of payment but with that of the court officer in charge of supervising the operation. However, the certificate drawn up by the court officer in charge of the transactions (exhibits AD 12 and 13 HPDC) denies that he himself made the payment, and that it was a third party who did so. 239. LAMA also questions the probative value of the reception reports in that the identification codes (known as "PID") of the cartridges do not correspond to a two- dimensional bar code allowing the identification of the geographical origin (non-EU) and that the witness does not mention this identification in his certificate (purchases from Top Of- fice/Tinko/ Bureau Vallée/Auchan). Furthermore, according to LAMA, the 'non- EU' origin (Pacific Asia, China, India) was not sufficiently precise to prove the geographical origin of the cartridges. However, the Court notes that what matters in the present dispute is proof of origin outside the territories of the EU, regardless of whether the countries in question are specific in Asia or Latin America; origin outside the EU is sufficient to show that the cartridges were not placed on the EU market for the first time with HP's authorisation. -purchases in 2022/2023 (clone cartridges sold under the LAMA trademark) "GENER'INK): 240. With regard to the online purchase and receipt reports from 2022/2023 from Amazon France, Amazon Spain and Bureau Vallée, LAMA notes that these cartridges were all delivered in bulk without "GENER'INK" brand packaging, so there is no proof that the cartridges ordered were originally sold by LAMA. 241. However, LAMA does not dispute that it is the owner of the trademark "GENER'INK" at least until April 2022, and yet LAMA's trademark appears both on the Amazon website at the time of the purchase observed by the court commissioner and on the invoice at the time of receipt (HPDC's observations in exhibits AD28 and 29). Furthermore, as HPDC rightly points out, the lack of packaging alleged by LAMA is irrelevant insofar as the packaging of the GE- NER'INK cartridges presented on the AMAZON FRANCE website actually corresponds to that observed by the court commissioner. 242. As regards the purchase from the Bureau Vallée website, even if the parcel mentioned by the judicial commissioner was not sealed, the name of LAMA or its brand was mentioned on the website at the time of purchase and on the invoice, as noted by the judicial commissioner (exhibits 30 and 31 of HPDC).2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 49 -the probative value of written statements and the witness's oral testimony2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 50 243. LAMA questions the impartiality of the witness because he is a current employee of the HP group, there is a subordinate relationship, the attestation is not accompanied by any form of identification, his competence to determine the geographical origin of the cartridges has not been demonstrated and it questions the veracity of his statements in that the database to which he refers is known only internally within the HP group and has not been disclosed. Lastly, LAMA argues that the photographs taken by the court commissioner are not of good quality and cannot be relied upon to identify the geographical origin using a damatatrix reader (LAMA's defence no. 1, page 293). 244. The Court noted that while it was common ground that the witness was an employee of a subsidiary of the HP group of companies, his written statements were corroborated by oral testimony given under the solemn declaration provided for in Rule 178.1 2nd paragraph RoP. Mr. 's testimony is relevant to the dispute because of his knowledge of the internal workings of the HP group. His oral testimony enlightened the panel on the method used to identify the geographical origin of the so-called "IPNA" (unauthorised parallel import) cartridges allegedly infringed by HPDC. -the probative value of screenshots from the LAMA website: 245. These are screenshots taken from the "lamafrance .com/en" website (in exhibit HPDC 49: in March 2019 and March 2023). 246. According to LAMA, a screenshot cannot be used as evidence based on elements of French national case law. However, under Article 48.6 UPCA and Rule 284 RoP, representatives of parties before the UPC are required not to misrepresent points of law or facts before the court. In addition, rule 171.2 RoP provides: "An alleged fact not specifically disputed by any of the parties shall be deemed to be common ground between the parties". 247. Thus, a piece of evidence introduced into the proceedings by a party, such as a screenshot of a website, if not specifically challenged by its opponent, cannot be considered to lack probative value. In the present case, LAMA is content to contest the principle without providing any specific evidence that would make it possible to call into question the probative value of the screenshots submitted by the HPDC in support of its infringement action. The screenshots extracted from LAMA's website will therefore be taken into account by this Court as one of the pieces of evidence in support of the infringement action before it and will not be dismissed as a matter of principle for lack of probative value. -the evidential value of tests carried out by CSIC 248. LAMA questions the probative nature of the technical expert's report (exhibit 50 HPDC), arguing that the tests were not independent, given that the expert's report was requested by representatives of HPDC, established in Spain, which is the same territory as the HPDC employee who is the author of the written attestations submitted by the claimant, and that it has not been established that this is an independent laboratory. Furthermore, according to LAMA, the identity of Professor Carles Cané Ballart (SoD page 286) cannot be verified. 249. The Court notes that the CSIC tests constitute a private expert opinion drawn up at2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 51 the request of the representatives of the plaintiff in the infringement action as provided for in Rule 170(b) of the UPC Rules of Procedure (RoP), that there is nothing in the file to cast doubt on the fact that2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 52 that it is an independent laboratory, nor that the author of the report's conclusions is a professor. The fact that this laboratory is located in Spain, where the author of the written attestations resides, in no way justifies calling into question the independence of this laboratory. 250. In conclusion, these documents in support of HPDC's claims will therefore be taken into account by the Court in assessing the evidence of the alleged infringement. Proof of infringement for clone cartridges 251. HPDC relies on the conclusions of the CSIC report (exhibit 50 HPDC) to demonstrate that the so-called clone cartridges infringe patent EP'669. These cartridges were purchased from Bureau Vallée in December 2022, and it was shown that the supplier was LAMA (exhibit 38 HPDC). 252. LAMA maintains that the "equivalence" tests in the CSIC report submitted to the court by HPDC are inadequate because they proceed on the basis of similarity, whereas the various types of cartridge are not identical, as mentioned by the authors of the said report in the development of their analyses. 253. The Court notes that the Barcelona Microelectronics Institute (known as "CSIC") carried out reverse engineering analyses of the inkjet cartridges of various samples concerning the "301XL" to "305XL" families/references, received from HPDC's representative. The report on the results of the analyses is dated 5 October 2023 and was signed on 7 October 2023. 254. CPISC presented the report in 8 parts, as follows: - Part A with general explanations of the reverse engineering work and a presentation of the cartridges received with photographs - part B on the presentation of the claims of the two patents EP 230 and EP 669 - part C on the analysis of 302XLB samples - part D on the analysis of 302XLC samples - Part E on the analysis of 303XLC samples - Part F on the analysis of 305XLB samples - part G on the analysis of 305XLC samples - part H on the analysis of samples 301XLB, 301XLC and 304XLC. 255. The photographs show that each ejection device for the different types / references of cartridge has a different construction. 256. On reading part A of the CSIC report, the Court understands that it was not always possible in the tests for the printer to accept suitable cartridges (free movement of the cables soldered into the cartridge contacts) and continue to operate. Thus, it is mentioned on page A 40 that "only correct operation of the printer without blocking errors was obtained with the 302XLB and 302XLC cabled samples when used with the Deskjet 1110 printer. These results are presented in Part C of the report. All other printer models gave unsolvable error codes." 257. It is described in the last paragraph on page A40 of the report: "For the process of2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 53 extracting signals from all the samples received with all the printers purchased to be more efficient, another type of more elaborate configuration would be required, with2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 54 special tools to interconnect cartridges and printers correctly without producing fatal error codes for the software. Additional information on how printers work and how to avoid errors would also be useful/necessary". 258. At the end of part A of the report, the authors of the CSIC report conclude: 259. However, by comparing the photographs on page A-13, the Court notes that the fluid ejection devices have different constructions (see Image I-A-4, photographs of a 301XLC cartridge and a 301XLB cartridge, as well as 302XLB and 302XLC on page A-). 14). As a result, even if the CSIC report concludes that there are "important similarities" or Although there are "coincidences" between the 301XLB/302XLB and 301XLC/302XLC samples (see also Figure I-A-5 on page A-16 for "F6-301XLB-50" and "F11-302XLB-55"), this is not enough to demonstrate that the electrical operation of the 301XLB and 302XLB cartridges is exactly the same. 260. In addition, looking at photographs "F1-301XLC-45" and "F16-302XLC-60" (page A-16), it can be seen that photograph "F16-302XLC-60" does not show details of the flexible printed circuit board (PCB), even though it is not claimed. Furthermore, these photographs show that the arrangement of the input connectors is different between the two types of cartridge. There is no evidence that the 301XLC samples coincide with the 302XLC samples. 261. In addition, the Court also noted that the report did not include a photograph of the 304XLB cartridge, but only of the 305XLB cartridge. For this reason, the argument of similarities between the 304XLB and 305XLB cartridges is not convincing, since the CSIC did not receive samples of the 304XLB cartridges. 262. Consequently, the analysis by equivalence for the 301 XLB and 301 XLC cartridges, based solely on the similarities between the different families of cartridges, cannot succeed in demonstrating the existence of the reproduction of the characteristics of the EP'669 patent as alleged by HPDC and contested by LAMA, because the CSIC tests do not demonstrate that the functioning between the different types of cartridges is identical. 263. The same applies to the "equivalence" analyses concerning the 305 XLC and 304 XLC cartridges, which are not convincing in that it has not been demonstrated that they function identically. 264. The reasoning by equivalence in part H of the report concerning the 301XLB, 301XLC and 304XLC cartridge samples cannot therefore be considered sufficiently conclusive for the same reasons as those given above. The Court also notes that the analyses of the 302XLC samples were not carried out in full because the CSIC report also refers to an analysis by equivalence to the tests carried out on the 302XLB samples (part D, pp. D6 and D8). 265. On the other hand, the Court notes that part C of the CSIC report on the analysis of the 302XLB samples shows photographs and explains the full oscilloscope cope tests to which the samples of this type of cartridge were subjected. The report on page C-2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 55 15 (last paragraph) concludes to an implementation of an address generator as described in claim 1 of the EP 669 patent and in particular feature C1f) as follows "a second address generator (1002) configured to provide second address signals based on timing signals received from said plurality of select lines". The results shown in the table in the report on page C-41 are sufficiently supported by the extensive testing of the sample of 302XLB cartridges, and demonstrate not only the reproduction of product claim 1 but also of its dependent claims 2,3,4 as well as process claim 7 and its dependent claims 8 and 9. 266. Table T-C1-2 on page C41 of the CSIC report :2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 56 267. As a result, with regard to the so-called "clone" cartridges, the infringement of patent EP'669 (in its claims 1, 2, 3, 4, 7, 8 and 9) alleged by HPDC has been demonstrated for the "302XLB" type cartridges tested alone. Proof of the geographical origin of 1ère cartridges, the subject of parallel imports (known as "IPNA")2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 57 268. These are recycled HP cartridges, the subject o f unauthorised parallel imports (known as "IPNA") which are alleged to be infringing cartridges by HPDC. 269. HPDC explains that the HP group markets its cartridges in various parts of the world, including the European Union, where it has exclusive rights over them, and that importing cartridges marketed outside the European Union without its authorisation constitutes unauthorised parallel import. 270. HPDC contends that it is able to trace the cartridges it manufactures and sells through various codes affixed to HP cartridges, including Product In- formation Documents (PIDs) and Flex Information Documents (FIDs). These codes allow HP to determine whether the cartridges were manufactured by HP and where they were first sold. 271. Finally, HPDC points out that an additional element may be patches with a memory circuit manufactured by a third party for imported reconditioned products. 272. During online purchases of cartridges in the context of purchase and cons- tat reports drawn up by a bailiff, HPDC states that it has identified HP cartridges known as "IPNA" as follows: - During the 2018/2019 campaign, the bailiff noted the PID directly on the cartridges, HPDC was then able to determine the origin of the cartridges using its database. - for the cartridges purchased during the 2022/2023 campaign from Bureau Vallée (HPDC 31 parts), the PID number was not visible on the cartridges. The bailiff therefore took photographs of the flexible circuit in order to zoom in on the PID, which was then entered into the HPDC database to determine the origin of the car- touches. 273. The Court notes that with regard to HPDC's allegedly infringing cartridges known as "LAMA's challenges relate to proof of the geographical origin of the recycled HP cartridges purchased from LAMA's resellers, and not to the fact that these so-called "IPNA" cartridges reproduce the claims of patent EP 669. 274. It is therefore for the Court to consider whether the evidence adduced by HPDC is sufficient to show that the allegedly infringing HP cartridges were indeed placed on the market by LAMA in the territory of the EU after having been the subject of unauthorised parallel imports and therefore do not fall within the exception of exhaustion of rights provided for in Article 29 UPCA, that is to say that those cartridges were not first marketed by HP within the EU. 275. The Court notes that HPDC's representative, at the hearing (3h 04min 32secs -, 3h 15min 28secs to 3h 16min 18secs and 6h 27min 23secs to 6h 28min 17secs), repeatedly stated that there was nothing to prevent recycled cartridges which had been the subject of initial marketing within the EU by HP from being put back on the market once they had been reconditioned. 276. The purchase of these cartridges online from LAMA resellers (resellers' declaration in exhibit 23 of HPDC) was carried out in the context of purchase reports and bailiff's reports in 2028 and 2019, which the Court has already stated were considered valid means of proof. 277. As regards purchases from TINCKO (HPDC 10 and 11 parts), the products purchased include 302 XL cartridges from outside the EU. However, as LAMA rightly points out, these products are sold under the brand name "The premium solution", which is the brand2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 58 name of TINCKO.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 59 TINCKO indicated that it had two suppliers: PROLASER and LAMA (exhibit 23HP page 4). Consequently, it has not been shown that this allegedly infringing product was purchased by the re-seller from LAMA. 278. For the other products mentioned in the 2018/2019 purchase and inspection reports, LAMA's challenges relate to proof of the geographical origin of the reconditioned HP cartridges. Mr. 's written statements referred to in the written statements and Annex 1 to Statement No. 2 (HP Exhibits 20 and 50) were clearly confirmed at the oral hearing by the author of the statements who spoke before the panel under the Rule 178 RoP declaration. In addition, the witness's statements are corroborated by the information on HP's public website regarding geographical areas by cartridge type. Each type of cartridge is distinguished by a specific commercial reference or "(cf attestation 2 from Mr in exhibit 60 HPDC: "Each SKU is associated with a zone from 1 to 4: - Zone 1: North America, Asia Pacific (excluding Japan, China, India), - Zone 2: Europe + CISMEA-Com- monwealth of Independent States, Europe, Middle East, and Africa)-, - Zone 3: Latin America, - Zone 4: China, India). 279. Consequently, it has been sufficiently demonstrated for the following cartridges that they were manufactured by HP to be marketed in areas outside the EU, and it does not matter whether the geographical area is broad or not, the only relevant point being whether these cartridges come from an area other than the so-called "Europe, Middle East and Africa" area, which includes the EU countries. The following cartridges were the subject of online purchase reports drawn up by bailiffs in 2018, as follows: - from Top Office (HPDC 8 and 9 parts): type 304 XL cartridges are sold under the brand name "Equival'encre", whose PID has identified a non-EU origin; - from Bureau Vallée (parts HPDC 12.1 to 12.7 and 13.1 to 13.7): recondi- tioned HP cartridges type 301 XL and 302 XL sold under the brand name "Uprint", for which the FID photograph identified a non-EU origin; - from Electro dépôt, (exhibits 14.1 to 14.8 and 15.1 to 15.7 HPDC) 301XLC cartridges, sold under the brand name "Inkees", for which FID photographs made it possible to determine a non-EU origin; - from Auchan (exhibits 16 and 17 HPDC), type 302 XL cartridges, sold under the "QILIVE" private label; the FID photograph identified a non-EU source; - from LEADINK (exhibits 18 to 19 HPDC), type 301XL cartridges, sold under the brand name "Uprint", whose FID photograph identified a non-EU origin; 280. With regard to the purchase statements made to Bureau Vallée in 2022 (exhibits 31.1 to 31.20 HPDC), LAMA also contests the method of identifying the geographical origin, arguing that the correspondence between the FID taken from the photographs taken by the bailiff and HP's database of the geographical areas of marketing is not verifiable. 281. However, the photograph taken by a public official of the cartridges that were the subject of the purchase and inspection reports is not validly challenged in this case. At2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 60 In addition, the fact that HP markets different types of cartridges in different geographical areas is public information because it is mentioned on HP's commercial website (exhibit 61 HPDC), and the method as explained by witness M. is considered by the Court to be sufficiently conclusive for the reasons explained above. 282. Consequently, it is proven that the cartridges sold in 2023 by LAMA to Bureau Val- lée of type 303 XL colour and type 305 XL black/black & colour as indicated in the annex to Mr 's declaration in HP Exhibit 60 are reconditioned cartridges that were first marketed by HP in areas outside the EU. These cartridges were therefore placed on the EU market without authorisation from their manufacturer, HP. As LAMA does not dispute that these recycled HP cartridges contain print heads implementing the claims of patent EP'669 relating to the fluid ejection system, it is sufficiently demonstrated that these so- called "IPNA" products are infringing. 283. In conclusion, HPDC proved infringement of patent EP'669 within the meaning of Article 25 UPCA. The role of LAMA in acts of direct infringement within the meaning of Article 25 UPCA -LAMA's role in manufacturing : 284. HPDC maintains that LAMA manufactures the allegedly infringing cartridges, although LAMA has always contested its role as manufacturer. 285. The Court has already indicated in its Disclosure Order issued on 2 August 2024 that : "As regards manufacturing, at this stage of the proceedings, the only evidence that Lama had a role in the manufacture of the allegedly infringing products would be its own statements on its website in the screenshot produced in the official report drawn up at HP's request (exhibit 49 HP): "Lama France has been remanufacturing inkjet and laser cartridges since 1996 for various brands. 286. However, the chartered accountant's certificate clearly states that LAMA's only activity is trading, and that it has no "own production". (exhibit 49 LAMA) 287. In addition, LAMA clarified the role of its two subsidiaries in its written reply of 31 July 2024 by producing extracts from the Kbis for each." 288. HPDC argues that LAMA markets the cartridges under its own GE-NER'INK and UPRINT brands, that its name appears on the packaging, and that LAMA is also mentioned as a manufacturer on various commercial websites. However, the documents submitted to the debates relating to the corporate purpose and articles of association of LAMA and its subsidiaries show, on the contrary, that neither LAMA nor its subsidiaries have an effective role as manufacturer, and this is confirmed by the attestation of the chartered accountant (exhibit HPDC 49). Even if a project for a re-packaging warehouse on its own premises was envisaged by LAMA in January 2021 (regional press article in exhibit 53 HPDC), there is no proof that this project was carried out. Furthermore, the mere fact that a "marketplace" indicated LAMA's name as "manufacturer", in relation to a product marketed under a trademark registered by LAMA, cannot suffice to demonstrate LAMA's role in the manufacture, as the trademark only indicates the commercial origin of these products which are marketed in the EU by the owner of the said trademark. 289. In light of these elements, HPDC fails to demonstrate that LAMA is the manufacturer of the allegedly infringing cartridges.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 61 -LAMA's role in importing, placing on the EU market and holding for resale to wholesalers 290. The role played by LAMA as an importer is sufficiently demonstrated in the light of the invoices submitted in the proceedings in execution of the information order of 2 August 2024 (from China or Asia-Pacific) as well as by the resale to wholesalers on the territory of the EU (Official Statements of Findings and Purchases of 2018/2019 and 2022/2023), concerning in particular the cartridges distributed by Bureau Vallée, some of which have been proven to be "clones" of HP cartridges infringing the main claims of the EP'669 patent. On the prohibition and remedies sought against LAMA under ar- ticles 63 and 64 UPCA 291. HPDC is asking the Court to order several types of measures against LAMA. 292. First of all, HPDC asks the Court of First Instance to declare that LAMA infringes the EP'669 patents by manufacturing, importing, offering for sale, selling and putting on the market the HP clones and IPNA cartridges and thereby also by offering to implement the processes covered by those patents. 293. HPDC is seeking injunctive relief (articles 25 and 63 of the UPCA) against LAMA France's continued infringement of the EP'669 patents, together with a fine of €500 per cartridge per day from the date of service of the Court's decision. 294. LAMA contests this request for a ban, arguing that : -It is unable to identify whether the cartridges are "IPNA" or "clone" cartridges reproducing the patent claims, -This general ban would constitute an abuse of a dominant position, since it would amount to prohibiting all sales of reconditioned cartridges, the amount of the fine is exorbitant and disproportionate, representing 25 times the retail price of a 20-euro cartridge. 295. HPDC also requests: - the recall of LAMA FRANCE's infringing products in order to put an end to and prohibit the continuation of acts of infringement, together with a fine of €500 per product and per day of delay, from the 15th calendar day after notification of the decision to intervene, as long as LAMA FRANCE has not provided proof, under the supervision of a court commissioner, of the recall; - the removal of IPNA cartridges and HP clones from commercial channels, together with a penalty payment of €500 per product and per day of delay; - HPDC has requested that the IPNA cartridges and HP clones be destroyed, subject to a penalty of €500 per product and per day of delay. On the ban and corrective measures 296. With regard to the measures to recall and keep off the market or destroy the counterfeit cartridges, LAMA contests them, reiterating the reasons given for banning the products. LAMA added that HPDC had not provided any evidence of the2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 62 deliberate intention to infringe the patents, the receipt of a simple warning letter not being sufficient to characterise such an intention. LAMA states that, as it is not a so-called standard manufacturer, it would be impossible for it to identify each repackaged cartridge, as this would require the removal of the UPRINT packaging, and to define an IPNA cartridge by having access to the HPDC data, or to carry out an in-depth analysis of any "clone" cartridge. 297. The Court notes that the purpose of the present decision is not to paralyse all of LAMA's trade in relation to acts of trade which do not fall within the scope of the infringement proceedings brought in the present decision. Moreover, it was pointed out that HPDC did not object to trade in reconditioned cartridges compatible with HP printers for recycled cartridges that had first been marketed in the EU territory with HP's authorisation. 298. However, as an importer and professional operator on the market for printer ink cartridges in the territory of the EU, it is LAMA's responsibility to ensure that the products it imports and resells respect the intellectual property rights of the patent-holding companies. LAMA cannot therefore legitimately argue that it is materially impossible to check whether or not the cartridges it places on the EU market comply with patent EP'669 held by HPDC. This means of contesting the application is irrelevant. 299. In the light of the foregoing, the Court considers that the application for a prohibition under Article 63 UPCA is justified and will be ordered in the terms set out in the operative part of this judgment. 300. The requests for measures to recall the infringing products from commercial channels, remove them from the market and destroy them, as defined in the operative part of this decision, will also be granted. 301. These measures must be carried out by LAMA, subject to a penalty payment, in accordance with the terms and conditions set out in the operative part of this decision. Publication of the decision 302. HPDC is seeking publication of the decision on the LAMA website within 15 calendar days of service of the decision for a period of three months, together with a penalty payment of €5,000 per day of delay. 303. LAMA objects, arguing that the request is excessive and disproportionate. 304. The Court considers that the prohibition and the corrective measures are sufficient to preserve the patent proprietor's rights without the need for a publication measure. Consequently, the addition of a publication measure is not appropriate in the present case. The request will therefore be rejected. On the request for i n f o r m a t i o n 305. HPDC requests that its request for information relating to LAMA's manufacturing, production and distribution network, as well as its accounting data, be granted. 306. LAMA opposes this application on the grounds that : -This request cannot be granted at this stage of the proceedings when a separate procedure to determine damages has been requested;2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 63 -this request is neither justified nor proportionate, since it corresponds to a very broad period (period not covered by the statute of limitations) and is not limited in content, and therefore not limited to the objective pursued, since all the cartridges marketed by LAMA are not systematically infringing; -it is not possible to reason on the basis of product references alone, because the car key reference (type of cartridge) is not the element that characterises the product deemed to be infringing -This would be tantamount to communicating all of LAMA's confidential financial and commercial data to a competitor. 307. In the alternative, LAMA requests that, if the request for disclosure of information is granted, it be strictly limited to the cartridges that are the subject of the present dispute and the subject of the statements of facts, which are considered to be infringing by the present decision without any extension by way of product references. 308. It adds that the requested penalty of 5,000 euros per day of delay is unreasonable in view of the very extensive and precise information concerning each product reference. 309. Lastly, LAMA points out that the judge-rapporteur has already granted a request for the provision of information by HPDC by order of 2 August 2024. 310. The Court notes that, contrary to LAMA's contention, requests for disclosure of information under Article 68 UPCA may be granted at any stage of the proceedings without waiting for the procedure for fixing damages, as has been held on several occasions in the UPC. (UPC CFI 7/2023, LD Düsseldorf, 3 July 2024 and UPC CFI 358/2023, LD Paris, 2 August 2024) 311. Although an order under Rule 191 of the RoP has already been made by the Judge- Rapporteur, disclosure was very limited at the pre-trial stage. To date, the Court has found that acts of infringement have been committed, and in order to ensure the effectiveness of the decision, it is therefore appropriate to grant the request for extended disclosure aimed at informing HPDC about the network of manufacturers that supplied LAMA with the type of cartridges found to be infringing in the present decision, i.e. the type 302 XLB cartridges covered by the online purchase reports from the retailer Bureau Vallée in 2023 and tested by CSIC, as well as the types of so-called "IPNA" cartridges covered by the purchase reports in 2018/2019 and 2022/2023 and which do not benefit from the exhaustion of rights exception provided for in Article 29 UPCA. 312. LAMA will be enjoined to communicate all purchase invoices from the manufacturer(s) and resale invoices to the wholesalers concerned over the period not covered by the statute of limitations (5 years prior to the date of notification of the action), i.e. between 11/10/2018 and 11/10/2023, which relate to the types of counterfeit cartridges as defined in this decision, and in accordance with the practical arrangements set out in the operative part of this decision. 313. The Court notes that LAMA has the possibility of requesting that information on its accounts be disclosed under a confidentiality club, so that those measures of disclosure are proportionate and limited to what is necessary in the light of the grounds of the present decision.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 64 On the provision for damages2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 65 314. HPDC has submitted a claim for provisional damages under article 68 UPCA, which LAMA opposes in principle. 315. The plaintiff has not provided any evidence to justify such an amount, so the Court will not grant the request for an advance in this respect. On the provision for costs 316. As regards the determination of costs, as indicated in the order for a status conference, the two parties have requested separate proceedings. 317. In accordance with rule 118.5 of the RoP, the Court decides in principle that since HPDC is unsuccessful in its infringement claim on patent EP'230 and LAMA is unsuccessful in its infringement claim on patent EP669, each of the parties will be required to bear half of the costs of the proceedings in accordance with article 69 of the UPCA. 318. HPDC requests an advance on costs of EUR 168,000, without however presenting any argument as to the amount requested. The Court considers that the request for an advance on costs is not sufficiently justified, and consequently the amount covering the costs of the proceedings will be determined by the Court in separate proceedings, upon application by a party for an order as to costs pursuant to Rule 151 of the RoP. Accordingly, HPDC's application for an advance on costs must be dismissed. ON THESE GROUNDS, The Court orders that : - As a preliminary point, the references to the CJEU for a preliminary ruling are rejected, I) on patent EP'230 1. The European patent EP'230 shall be revoked in its entirety with effect in the territories of the contracting Member States for which the European patent had effect at the date of the counterclaim for revocation, excluding Italy, namely Austria, Belgium, Denmark, France, Germany, the Netherlands, Portugal and Sweden; 2. The Registry shall send a copy of this decision to the European Patent Office and to the national patent office of any Contracting Member State concerned, in accordance with Article 65(5) of the UPCA, after the expiry of the time limit for appeal to the Court of Appeal, 3. All of HPDC's infringement claims based on the EP'230 patent are dismissed, II) on patent EP'669 1-Dismisses the counterclaim for revocation of the patent, 2-Declares that LAMA has infringed the claims of patent EP 669; 3-Prohibits LAMA France from offering, placing on the market, importing and holding for the purpose of placing on the market in the territories of Germany, Austria, Belgium, Denmark, France, the Netherlands, Portugal and Sweden, ink cartridges for printers equipped with print heads.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 66 with a fluid ejection device comprising the features described as follows, except for reconditioned cartridges originally intended for the EU market and placed on the EU market with the authorisation of HPDC: A fluid ejection device (22) comprising : - a first trigger line (214) capable of conducting a first energy signal comprising energy pulses; - a second trigger line (214) capable of conducting a second energy signal comprising energy pulses; - a plurality of selection lines for conducting timing signals, said plurality of selection lines comprising a first selection line and a second selection line; - a first address generator (1000) configured to provide first address signals based on timing signals received from said plurality of select lines; - a second address generator (1002) configured to provide second address signals based on timing signals received from said plurality of select lines; - first drop generators (60) electrically coupled to the first trigger line and the first select line and configured to respond to the first energy signal to eject fluid based on the first address signals and a timing signal on the first select line; and - second drop generators (60) electrically coupled to the second enable line and the second select line and configured to respond to the second energy signal to eject fluid based on the second address signals and a timing signal on the second select line. Or implementing a method of operating a fluid ejection device (22) comprising : A method of operating a fluid ejection device (22) comprising: generating first address signals in the fluid ejection device based on timing signals on a plurality of select lines comprising a first select line and a second select line; generating second address signals in the fluid ejection device based on timing signals on a plurality of select lines comprising a first select line and a second select line; receiving a first energy signal comprising energy pulses on a first trigger line; generating a second energy signal comprising energy pulses on a second trigger line; generating a third energy signal comprising energy pulses on a third trigger line; and generating a fourth energy signal comprising energy pulses on a fourth trigger line. (214); receiving a second energy signal comprising energy pulses on a second trigger line (214); responding to the first energy signal to eject fluid based on the first address signals and a timing signal on the first select line; and responding to the second energy signal to eject fluid based on the second address signals and a timing signal on the second select line. 4-Declares that the prohibition measure as indicated in II.3) of this decision shall be accompanied by a penalty payment of a maximum amount of 500 euros per product and/or 500 euros per day of delay starting 30 days after notification of this decision.2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 67 III) on corrective measures (article 64 UPCA) 1-Enjoins LAMA France to withdraw from commercial channels the counterfeit products it has placed on the market in the territory of the States referred to in II.3) above, 2-Enjoins LAMA France to proceed with the destruction of the stock held by it of the con- treating products designated in II.3) of the present provision, under the supervision of a court commissioner, 3-Imposes a penalty of up to €500 per product and/or €500 per day of delay on the above corrective measures, starting 60 days after notification of this decision, IV) on information communication measures Orders LAMA France to provide HPDC, within 30 days of notification of this decision, with the information necessary to calculate damages as follows: - all purchase and resale invoices to the wholesalers concerned for the period not covered by the limitation period (5 years prior to the date of referral to the court, i.e. from 11/10/2018 to 11/10/2023) relating to the types of counterfeit cartridges as defined in II.3) of this decision, - accounting information relating to t h e import, purchase or sale over the period from 11/10/2018 to 11/10/2023, concerning the type of counterfeit cartridges as defined in II.3) of the operative part of this decision, and more specifically information on the quantities ordered and/or resold and on the prices of the said counterfeit products, -the identity of the manufacturers and/or suppliers of the counterfeit cartridges as defined in the II.3) of the operative part of this decision, V) on costs and claims for payment of provisions -Each of the parties shall bear 50% of the costs of this action, as fixed by separate procedure at the request of the parties, -Rejects the request for payment of an advance on costs as provided for in article 69.2 UPCA, - Dismisses the claim for damages under article 68 UPCA, -Holds that this decision may be appealed in accordance with rule 220.1 (a) RoP. Rendered in Paris on 13 November 2024. Camille Lignieres, Chairman and Judge-Rapporteur Date : 2024.11.13 15:35:35 +01'00'2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com 68 Peter Tochtermann, legally qualified judge Dr. Peter Michael Tochterman n Digital unterschrieben von Peter Michael Dr. Ing. Tochtermann Datum: 2024.11.13 15:19:42 +01'00' Carine Gillet, legally qualified judge 2024.11.13 13:59:31 +01'00' Stefanie Philipps, technically qualified judge STEFANI E PHILIPPS Digital signiert von STEFANIE PHILIPPS DN: cn=STEFANIE PHILIPPS, c=DE Datum: 2024.11.13 12:18:13 +01''00'' Marielle Brasseur, Registrar Digitally signed by MARIELLE FLORENCE NICOLE Brasseur Date : 2024.11.13 15:47:06 +01'00' DETAILS OF THE DECISION Decision ORD 598511/2023 in ACTION Nº ACT 578697/2023 UPC nº: UPC CFI 358/2023 Type of action: Infringement action2024-11-13 LD Paris UPC CFI 358-2023 ACT 578697-2023 ORD 598511-2023 en-GBDeepL machine translation provided by www.veron.com

Key Holdings

• The Court adopts the standard of patent interpretation established by the UPC Court of Appeal, emphasizing that claims are the basis for protection but must be interpreted with the aid of the description and drawings, from the perspective of a person skilled in the art, to balance patent owner protection and legal certainty for third parties.
• For novelty, an invention must be found in its entirety and in a single prior art document, with its constituent elements in the same form, arrangement, and operation, achieving the same technical result.
• The Unified Patent Court has jurisdiction over infringement acts that began before June 1, 2023, and continued after this date, provided they are not covered by the period of limitations.
• In the context of Article 29 UPCA relating to the exhaustion of rights, the UPC has jurisdiction to examine competition law invoked as a defense to alleged infringement, but a defense based on competition law must be operative to warrant a preliminary ruling to the CJEU.
• For acts of direct infringement as defined by Article 25 UPCA, the plaintiff is not required to prove that the defendant had prior knowledge of the patent's existence or the materiality of the alleged infringement.

Tags

• Added Matter
• CJEU Referral
• Claim Construction
• Counterclaim
• Enforcement
• Exhaustion
• Inventive Step
• Knowledge of Infringement
• Novelty
• Skilled Person
• Sufficiency of Disclosure

Related Rules

• Article 6 – Defendants Domiciled Outside Member States

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