UPC_CFI_54_396_2024_Aug01 – Headwater v Samsung

Expert Commentary

Infringement / revocation Facts Infringement action started on 12 February 2024. During the interim conference on 28 February 2025 JR dealt with procedural motions. Various other procedural applications were made which according to the JR would be decided after the oral hearing. Samsung denies infringement and argues further that Headwater is not entitled to sue and that the patent is invalid. The Court 1. For claim interpretation the Court refers to the decision of the Court of Appeal re 2. Nanostring (UPC_CoA_1/2024) and Vusiongroup (UPC_CoA_768/2024) and the decision of the Enlarged Board 1/24 of 18 June 2025. 3. Parties agree on the skilled person. 4. With respect to added matter the Court referred to the test as formulated in 5. Abbott v Sibio (UPC_CoA_382/2024) of 14 February 2025. The Court states “This test essentially aligns with the long-standing case law of the EPO Boards of Appeal (G2/10; G3/89; G11/91). The present case is not affected by deviations of the EPO Board of Appeal case law on added matter in some details.” 6. The Court decides that there is added matter in claim 1 and the claims invoked. Only one of the 30 auxiliary requests which have been submitted addresses this revocation ground but this request does not, according to the Court, solve the added matter problem. 7. As the invoked claims are invalid there is no infringement. 8. As the patent is invalid no decision with respect to the procedural orders is necessary. Conclusion: Claims 1, 2, 5, 6, 10 and 33 are revoked. The value of the litigation is €5 million. Cost ceiling: €600,000. Comment 1. This case—like several before it lost on added-matter grounds—offers an important lesson for patent attorneys. This invalidity ground is the result of sloppy prosecution (and an examiner who is not doing his job properly). Patent attorneys are often (also because of time restraints for financial reasons) too much focused on just getting a patent granted. 2. It is also a lesson for representatives to be far more critical before deciding to litigate on the basis of a patent. In this case the added matter problem was pretty clear. 3. The Munich Division is giving some hints that it is not automatically giving more authority to the Court of Appeal than to the Enlarged Board of Appeal of the EPO. Although in the ideal world there should not be a difference between their decisions, it is clear that the Court of Appeal is deciding about the law in the UPC and not the Enlarged Board. So if there are differences the Division in Munich should apply the decisions of the Court of Appeal and not leave any doubt about that. __

Full Decision Text

Decision of the Court of First Instance of the Unified Patent Court Local Division Munich concerning European Patent 2 391 947 issued on 1 August 2025 - redacted - CLAIMANT Headwater Research LLC 110 North College Ave., Suite 1116 - 75702 - Tyler, Texas - US represented by: Thomas Adam (Peterreins Schley) (referred to as “Headwater”) DEFENDANTS Samsung Electronics GmbH Am Kronberger Hang 6 - 65824 - Schwalbach – DE Samsung Electronics France S.A.S 6 Rue Fructidor - 93400 - Saint-Ouen-sur-Seine – FR Samsung Electronics Co. Ltd. 129, Samsung-ro - 16677 - Yeongtong-gu, Suwon-si, Gyeonggi-do – KR represented by: Representative Denise Benz (Allen Overy Shearman Sterling) (collectively referred to as “Samsung”) PATENT AT ISSUE European patent n° 2 391 947 Local Division Munich UPC_CFI_54/2024 UPC_CFI_396/2024 UPC_CFI_54/2024 UPC_CFI_396/2024 2 PANEL/DIVISION Panel 1 of the Local Division Munich (“LD Munich”) DECIDING JUDGES This decision was adopted by the Presiding Judge Dr. Matthias Zigann, acting as Judge- Rapporteur, the legally qualified judges András Kupecz and Tobias Pichlmaier and the technically qualified judge Eric Augarde. LANGUAGE OF THE PROCEEDINGS English. DATE OF THE ORAL HEARING 20 May 2025. An additional oral hearing has been provisionally scheduled for 16 September 2025, in the event that the panel deems the patent as granted or as amended to be valid. However, as this is not the case, the hearing scheduled for 16 September 2025 shall be cancelled. DATE OF THE ANNOUNCEMENT OF THE DECISION 1 August 2025. SUBJECT-MATTER Infringement action (ACT_7603/2024) with counterclaim for revocation (CC_40130/2024) and application to amend the patent (App_52011/2024). Applications to review a case management Order (RoP333), App_13435/2025 UPC_CFI_54/2024 and App_13434/2025 UPC_CFI_396/2024, Generic Application (R 30.2) App_13924/2025 UPC_CFI_396/2024, Application for leave to change claim or amend case/pleading (RoP263) App_13925/2025 UPC_CFI_54/2024. Generic Applications (R 9) App_21048/2025 UPC_CFI_54/2024 and App_13924/2025 UPC_CFI_54/2024. SUMMARY OF THE DISPUTE An infringement action was filed by Headwater against Samsung with the LD Munich on 12 February 2024. Headwater asserts that Samsung’s mobile communication end-user devices having an oper- ating system Android 7 or higher infringe European patent EP 2 391 947 (“the Patent”; exhibit K4), in particular claims 1, 2, 5, 6, 10 and/or 35 of the Patent. Samsung contests the alleged infringement and lodged a counterclaim for revocation on 5 July 2024, invoking Arts. 138(1)(c), 123(2) EPC as well as Arts. 138(1)(a), 54 and 56 EPC and Arts. UPC_CFI_54/2024 UPC_CFI_396/2024 3 138(1)(e) EPC as grounds for revocation. The counterclaim extends to claims 1, 2, 5, 6, 10, and 35 of the Patent. Headwater submitted an application to amend the Patent on 16 September 2024. An interim conference was held on 28 February 2025 at which procedural motions of the par- ties were decided (see order dated 3 March 2025). Various further procedural applications were made by the parties. By order dated 16 April 2025, the parties were summoned to be heard at the oral hearing scheduled for 20 May 2025, covering both the main proceedings and the procedural applications. The oral hearing before the Division took place on 20 May 2025 in Munich. The Patent The title of the Patent is “Verifiable device assisted service policy implementation”. The application was filed as an international application under the Patent Cooperation Treaty (application number PCT/US2010/021224) on 15 January 2010 and published on 5 August 2010 (publication number WO 2010/088072 A1). On 26 August 2011, the application entered the European phase (European application num- ber EP 10736205.5). During the European examination proceedings, the claims of the Patent were amended by written submissions of the Applicant dated 21 March 2012 and 20 December 2013. The date of publication and mention of the grant of the European Patent was 29 July 2015. The Patent is in force in the Federal Republic of Germany and the French Republic. The patent description is 229 pages long, contains 64 figures, is made up of 39 claims and has 468 para- graphs. The Patent claims the following priority dates: 28 January 2009 (US 206354 P), 4 February 2009 (US 206944 P), 10 February 2009 (US 207393 P), 13 February 2009 (US 207739 P) and 2 March 2009 (US 380759). The attacked embodiments Headwater´s infringement claims are directed to various Samsung mobile devices, including smartphone models of the "Galaxy S" series and those tablets of the Galaxy Tab S and Galaxy Tab A series that can be operated with a SIM card (physical or eSIM). The action is directed against all Samsung mobile devices which are operated with the Android operating system in version 7 ("Android Nougat") or higher and which are offered and distributed in the Federal Republic of Germany and/or the Republic of France by the Defendants and imported there. In particular, the smartphone models of the Samsung Galaxy S series, but also all Samsung Gal- axy tablets that can be operated with a SIM card (physical or eSIM) (sometimes advertised as "WiFi + Cellular"), according to Headwater embody wireless end devices according to claim 1 of the patent in suit. UPC_CFI_54/2024 UPC_CFI_396/2024 4 Since the data saving functionality has been an integral part of Android since version 7 (intro- duced in August 2016) and has been implemented by Samsung on its devices since then, Headwater´s infringement assertions apply to all mobile Samsung devices (in particular Sam- sung cell phones) that are equipped with the Android operating system version 7 or higher and with One UI. With regard to the realization of features, all these devices are designed in the same way with regard to the attributes relevant to the patent in suit. They are therefore all attacked embodiments. SUMMARY OF THE PARTIES´ REQUESTS Headwater requests in the infringement action (exhibit “Annex K request I”): I. the Defendants are ordered: 1. to cease and desist from offering, putting on the market, using, or importing or possessing for these purposes, in the Federal Republic of Germany, and/or the Republic of France, wireless end-user devices each comprising: one or more modems for enabling the wireless end-user device to communicate over at least two wireless access networks, the at least two wireless access networks comprising a first wireless access network and a second wireless access network; a user interface; memory; and one or more processors for executing one or more agents, the one or more agents configured to: identify when the wireless end-user device is connected to the first wireless access net- work, characterized in that the memory is configured to store a first service policy associated with the first wireless access network, the first service policy comprising one or more first- network policy settings or rules, the first service policy configured to assist the wireless end- user device to reduce data usage associated with a first service activity over the first wireless access network, the first service activity being less than all service activities available to the wireless end-user device, the first service policy for enabling the wireless end-user device to control the first service activity on the first wireless access network differently from how the wireless end-user device controls first service activity on the second wireless access network; and the one or more agents are further configured to: obtain, through the user interface, a user input indicating to apply the first service policy to the first service activity when the wire- less end-user device is connected to the first wireless access network, identify attempted or successful data communications over the first wireless access network that are associated with the first service activity, and apply the first service policy to the identified attempted or successful data communications over the first wireless access network, thereby reducing data usage over the first wireless access network associated with the first service activity, in particular mobile phones labeled “Galaxy S22”, “Galaxy S23” and “Galaxy S24” (including the variants “Ultra” and “+” in each case) as shown below by way of example: UPC_CFI_54/2024 UPC_CFI_396/2024 5 (direct infringement of claim 1 of EP 2 391 947 B1) in particular, if a) each of the first and second wireless access networks are configured to provide Internet access (AR 1 in revocation prong) or b) the first service activity and other service activities of the all service activities are Internet based services associated with one of a social networking application, a media streaming ap- plication, or a web browsing application and the feature “obtain, through the user interface, a user input indicating to apply the first service policy to the first service activity when the wireless end-user device is connected to the first wireless access network” UPC_CFI_54/2024 UPC_CFI_396/2024 6 is further specified to read “obtain, through the user interface, a user input indicating to apply the first service policy to the first service activity when the wireless end-user device is connected to the first wireless access network and further indicating that the other service activities are left unaffected by the first service policy” (AR 2 in revocation prong) or c) the first service policy for enabling the wireless end-user device to control the first service activity and another service activity of all service activities on the first wireless access network differently from how the wireless end-user device controls first service activity and the other service activity on the second wireless access network and wherein the one or more agents are further configured to: obtain, through the user interface, a second user input indicating to apply the first service policy to the other service activity of the all service activities when the wireless end-user de- vice is connected to the first wireless access network or d) wherein reducing data usage comprises blocking data communications over the first wireless access network associated with the first service activity (AR 6 in revocation prong) or e) wherein the feature “identify attempted or successful data communications over the first wireless access network that are associated with the first service activity, and apply the first service policy to the identified attempted or successful data communications over the first wireless access network”, is further specified to read: “identify attempted data communications over the first wireless access network that are associated with the first service activity, and apply the first service policy to the identified attempted data communications over the first wireless access network,” and UPC_CFI_54/2024 UPC_CFI_396/2024 7 wherein reducing data usage comprises blocking upstream data communications from an ap- plication the first service activity is associated with before rather than being transmitted to the first wireless access network (AR 7 in revocation prong) or f) wherein the steps of identifying the attempted or successful data communications and apply- ing the first service policy thereupon are implemented in whole or in part in the kernel space for the device operating system (AR 8 in revocation prong) or g) each of the first and second wireless access networks are configured to provide Internet ac- cess and the first service activity and other service activities of the all service activities are Internet based services associated with one of a social networking application, a media streaming ap- plication, or a web browsing application and the feature “obtain, through the user interface, a user input indicating to apply the first service policy to the first service activity when the wireless end-user device is connected to the first wireless access network” is further specified to read “obtain, through the user interface, a user input indicating to apply the first service policy to the first service activity when the wireless end-user device is connected to the first wireless access network and further indicating that the other service activities are left unaffected by the first service policy” (AR 9 in revocation prong) or h) each of the first and second wireless access networks are configured to provide Internet ac- cess UPC_CFI_54/2024 UPC_CFI_396/2024 8 and the first service policy for enabling the wireless end-user device to control the first service activity and another service activity of all service activities on the first wireless access network differently from how the wireless end-user device controls first service activity and the other service activity on the second wireless access network” wherein the one or more agents are further configured to: obtain, through the user interface, a second user input indicating to apply the first service policy to the other service activity of the all service activities when the wireless end-user de- vice is connected to the first wireless access network (AR 10 in revocation prong) or i) each of the first and second wireless access networks are configured to provide Internet ac- cess and the first service activity and other service activities of the all service activities are Internet based services associated with one of a social networking application, a media streaming ap- plication, or a web browsing application and the features “obtain, through the user interface, a user input indicating to apply the first service policy to the first service activity when the wireless end-user device is connected to the first wireless access network, identify attempted or successful data communications over the first wireless access network that are associated with the first service activity, and apply the first service policy to the identified attempted or successful data communications over the first wireless access network” are further specified to read “obtain, through the user interface, a user input indicating to apply the first service policy to the first service activity when the wireless end-user device is connected to the first wireless access network and further indicating that the other service activities are left unaffected by the first service policy, identify attempted data communications over the first wireless access network that are associated with the first service activity, and apply the first service policy to the identified attempted data communications over the first wireless access network” and UPC_CFI_54/2024 UPC_CFI_396/2024 9 wherein reducing data usage comprises blocking upstream data communications from an ap- plication the first service activity is associated with before rather than being transmitted to the first wireless access network (AR 11 in revocation prong) or j) each of the first and second wireless access networks are configured to provide Internet ac- cess and the first service policy for enabling the wireless end-user device to control the first service activity and another service activity of the all service activities on the first wireless access network differently from how the wireless end-user device controls first service activity and the other service activity on the second wireless access network; wherein the feature “identify attempted or successful data communications over the first wireless access network that are associated with the first service activity, and apply the first service policy to the identified attempted data communications over the first wireless access network”, is further specified to read: “identify attempted data communications over the first wireless access network that are associated with the first service activity, and apply the first service policy to the identified attempted data communications over the first wireless access network”, wherein the one or more agents are further configured to: obtain, through the user interface, a second user input indicating to apply the first service policy to the other service activity of the all service activities when the wireless end-user de- vice is connected to the first wireless access network and wherein reducing data usage comprises blocking upstream data communications from an ap- plication the first service activity is associated with rather than being transmitted to the first wireless access network (AR 12 in revocation prong) or k) wherein the one or more agents comprise a policy implementation agent configured to: UPC_CFI_54/2024 UPC_CFI_396/2024 10 apply the first service policy to the identified attempted or successful data communications over the first wireless access network by operating on a data flow at one or more points in a device communication stack, the data flow comprising one or more related data transfers be- tween a software component on the wireless end-user device and a network communication end point (AR 16 in revocation prong) or l) wherein one or more traffic measurement points in a device communication stack can be used to assist in service control verification (AR 17 in revocation prong) or m) each of the first and second wireless access networks are configured to provide Internet ac- cess, and the first service activity and other service activities of the all service activities are Internet based services associated with one of a social networking application, a media streaming ap- plication, or a web browsing application and the features “obtain, through the user interface, a user input indicating to apply the first service policy to the first service activity when the wireless end-user device is connected to the first wireless access network, identify attempted or successful data communications over the first wireless access network that are associated with the first service activity, and apply the first service policy to the identified attempted or successful data communications over the first wireless access network” are further specified to read “obtain, through the user interface, a user input indicating to apply the first service policy to the first service activity when the wireless end-user device is connected to the first wireless access network and further indicating that the other service activities are left unaffected by the first service policy, and identify attempted data communications over the first wireless access network that are associated with the first service activity, and UPC_CFI_54/2024 UPC_CFI_396/2024 11 apply the first service policy to the identified attempted data communications over the first wireless access network, thereby reducing data usage over the first wireless access network associated with the first service activity”, wherein reducing data usage comprises blocking upstream data communications from an ap- plication the first service activity is associated with rather than being transmitted to the first wireless access network, wherein the one or more agents comprise a policy implementation agent configured to: apply the first service policy to the identified attempted or successful data communications over the first wireless access network by operating on a data flow at one or more points in a device communication stack, the data flow comprising one or more related data transfers be- tween a software component on the wireless end-user device and a network communication end point (AR 18 in revocation prong) or n) each of the first and second wireless access networks are configured to provide Internet ac- cess, and the first service policy for enabling the wireless end-user device to control the first service activity and another service activity of the all service activities on the first wireless access network differently from how the wireless end-user device controls first service activity and the other service activity on the second wireless access network; and and the feature “identify attempted or successful data communications over the first wireless access network that are associated with the first service activity, and apply the first service policy to the identified attempted or successful data communications over the first wireless access network” is further specified to read “identify attempted or successful data communications over the first wireless access network that are associated with the first service activity, and apply the first service policy to the identified attempted data communications over the first wireless access network, thereby reducing data usage over the first wireless access network associated with the first service activity”, wherein the one or more agents are further configured to: obtain, through the user interface, a second user input indicating to apply the first service policy to the other service activity of the all service activities when the wireless end-user de- vice is connected to the first wireless access network, UPC_CFI_54/2024 UPC_CFI_396/2024 12 wherein reducing data usage comprises blocking upstream data communications from an ap- plication the first service activity is associated with rather than being transmitted to the first wireless access network; wherein the one or more agents comprise a policy implementation agent configured to: apply the first service policy to the identified attempted or successful data communications over the first wireless access network by operating on a data flow at one or more points in a device communication stack, the data flow comprising one or more related data transfers be- tween a software component on the wireless end-user device and a network communication end point (AR 19 in revocation prong) or o) each of the first and second wireless access networks are configured to provide Internet ac- cess, and the first service activity and other service activities of the all service activities are Internet based services associated with one of a social networking application, a media streaming ap- plication, or a web browsing application and the features: “obtain, through the user interface, a user input indicating to apply the first service policy to the first service activity when the wireless end-user device is connected to the first wireless access network, identify attempted or successful data communications over the first wireless access network that are associated with the first service activity, and apply the first service policy to the identified attempted or successful data communications over the first wireless access network” are further specified to read: “obtain, through the user interface, a user input indicating to apply the first service policy to the first service activity when the wireless end-user device is connected to the first wireless access network and further indicating that the other service activities are left unaffected by the first service policy, and identify attempted or successful data communications over the first wireless access network that are associated with the first service activity, and apply the first service policy to the identified attempted data communications over the first wireless access network, thereby reducing data usage over the first wireless access network associated with the first service activity”, UPC_CFI_54/2024 UPC_CFI_396/2024 13 wherein reducing data usage comprises blocking upstream data communications from an ap- plication the first service activity is associated with rather than being transmitted to the first wireless access network; wherein the steps of identifying the attempted or successful data communications and apply- ing the first service policy thereupon are implemented in whole or in part in the kernel space for the device operating system; wherein one or more traffic measurement points in a device communication stack can be used to assist in service control verification (AR 20 in revocation prong) or p) wherein each of the first and second wireless access networks are configured to provide Internet access, and the first service policy for enabling the wireless end-user device to control the first service activity and another service activity of the all service activities on the first wireless access network differently from how the wireless end-user device controls first service activity and the other service activity on the second wireless access network; and wherein the feature “identify attempted or successful data communications over the first wireless access network that are associated with the first service activity, and apply the first service policy to the identified attempted or successful data communications over the first wireless access network”, is further specified to read: “identify attempted or successful data communications over the first wireless access network that are associated with the first service activity, and apply the first service policy to the identified attempted or successful data communications over the first wireless access network” and wherein the one or more agents are further configured to: obtain, through the user interface, a second user input indicating to apply the first service policy to the other service activity of the all service activities when the wireless end-user de- vice is connected to the first wireless access network, wherein reducing data usage comprises blocking upstream data communications from an ap- plication the first service activity is associated with rather than being transmitted to the first wireless access network; UPC_CFI_54/2024 UPC_CFI_396/2024 14 wherein the steps of identifying the attempted or successful data communications and apply- ing the first service policy thereupon are implemented in whole or in part in the kernel space for the device operating system; wherein one or more traffic measurement points in a device communication stack can be used to assist in service control verification. (AR 21 in revocation prong) or q) each of the first and second wireless access networks are configured to provide Internet ac- cess, and the first service activity and other service activities of the all service activities are Internet based services associated with one of a social networking application, a media streaming ap- plication, or a web browsing application wherein the features: “obtain, through the user interface, a user input indicating to apply the first service policy to the first service activity when the wireless end-user device is connected to the first wireless access network, identify attempted or successful data communications over the first wireless access network that are associated with the first service activity, and apply the first service policy to the identified attempted or successful data communi- cations over the first wireless access network, thereby reducing data usage over the first wireless access network associated with the first service activity” is further specified to read: “obtain, through the user interface, a user input indicating to apply the first service policy to the first service activity when the wireless end-user device is connected to the first wireless access network and further indicating that the other service activities are left unaffected by the first service policy, and identify attempted or successful data communications over the first wireless access network that are associated with the first service activity, and apply the first service policy to the identified attempted or successful data communi- cations over the first wireless access network, thereby reducing data usage over the first wireless access network associated with the first service activity” and wherein reducing data usage comprises blocking upstream data communications from an ap- plication the first service activity is associated with rather than being transmitted to the first wireless access network; wherein the one or more agents comprise a policy implementation UPC_CFI_54/2024 UPC_CFI_396/2024 15 agent configured to apply the first service policy to the identified attempted or successful data communications over the first wireless access network by operating on a data flow at one or more points in a device communication stack, the data flow comprising one or more related data transfers between a software component on the wireless end-user device and a network communication end point; wherein one or more traffic measurement points in the device communication stack can be used to assist in service control verification. (AR 22 in revocation prong) or r) each of the first and second wireless access networks are configured to provide Internet ac- cess, and the first service policy for enabling the wireless end-user device to control the first service activity and another service activity of the all service activities on the first wireless access network differently from how the wireless end-user device controls first service activity and the other service activity on the second wireless access network; and wherein the feature “identify attempted or successful data communications over the first wireless access network that are associated with the first service activity, and apply the first service policy to the identified attempted or successful data communications over the first wireless access network”, is further specified to read: “identify attempted or successful data communications over the first wireless access network that are associated with the first service activity, and apply the first service policy to the identified attempted or successful data communications over the first wireless access network” and wherein the one or more agents are further configured to: obtain, through the user interface, a second user input indicating to apply the first service policy to the other service activity of the all service activities when the wireless end-user de- vice is connected to the first wireless access network, wherein reducing data usage comprises blocking upstream data communications from an ap- plication the first service activity is associated with rather than being transmitted to the first wireless access network; UPC_CFI_54/2024 UPC_CFI_396/2024 16 wherein the one or more agents comprise a policy implementation agent configured to apply the first service policy to the identified attempted or successful data communications over the first wireless access network by operating on a data flow at one or more points in a device communication stack, the data flow comprising one or more related data transfers between a software component on the wireless end-user device and a network communication end point; wherein one or more traffic measurement points in the device communication stack can be used to assist in service control verification. (AR 23 in revocation prong) or s) each of the first and second wireless access networks are configured to provide Internet ac- cess, and the one or more agents comprise a policy implementation agent configured to apply the first service policy to the identified attempted or successful data communications over the first wireless access network by operating on a data flow at one or more points in a device communication stack, the data flow comprising one or more related data transfers between a software component on the wireless end-user device and a network communication end point, wherein one or more traffic measurement points in the device communication stack can be used to assist in service control verification. (AR 24 in revocation prong) or each of the first and second wireless access networks is a Wi-Fi network configured to provide Internet access (AR 25 in revocation prong) further in particular α) wherein the feature “identify attempted or successful data communications over the first wireless access network that are associated with the first service activity, and apply the first service policy to the iden- tified attempted or successful data communications over the first wireless access network”, is further specified to read: UPC_CFI_54/2024 UPC_CFI_396/2024 17 “identify attempted or successful data communications over the first wireless access network that are associated with the first service activity, and apply the first service policy to the iden- tified attempted or successful data communications over the first wireless access network,” and wherein reducing data usage comprises blocking upstream data communications from an ap- plication the first service activity is associated with rather than being transmitted to the first wireless access network” (AR 26 in revocation prong) or β) wherein the one or more agents comprise a policy implementation agent configured to apply the first service policy to the identified attempted or successful data communications over the first wireless access network by operating on a data flow at one or more points in a device communication stack, the data flow comprising one or more related data transfers between a software component on the wireless end-user device and a network communication end point (AR 27 in revocation prong) or γ) wherein the feature “identify attempted or successful data communications over the first wireless access network that are associated with the first service activity, and apply the first service policy to the iden- tified attempted or successful data communications over the first wireless access network”, is further specified to read: “identify attempted or successful data communications over the first wireless access network that are associated with the first service activity, and apply the first service policy to the iden- tified attempted or successful data communications over the first wireless access network,” and wherein reducing data usage comprises blocking upstream data communications from an ap- plication the first service activity is associated with rather than being transmitted to the first wireless access network and wherein the one or more agents comprise a policy implementation agent configured to apply the first service policy to the identified attempted or successful data communications over the first wireless access network by operating on a data flow at one or more points in a device communication stack, the data flow comprising one or more related data transfers between a software component on the wireless end-user device and a network communication end point” UPC_CFI_54/2024 UPC_CFI_396/2024 18 (AR 28 in revocation prong) or δ) wherein the feature “identify attempted or successful data communications over the first wireless access network that are associated with the first service activity, and apply the first service policy to the iden- tified attempted or successful data communications over the first wireless access network”, is further specified to read: “identify attempted or successful data communications over the first wireless access network that are associated with the first service activity, and apply the first service policy to the iden- tified attempted or successful data communications over the first wireless access network,” and wherein reducing data usage comprises blocking upstream data communications from an ap- plication the first service activity is associated with rather than being transmitted to the first wireless access network and wherein one or more traffic measurement points in a device communication stack can be used to assist in service control verification” (AR 29 in revocation prong) or ε) wherein the feature “identify attempted or successful data communications over the first wireless access network that are associated with the first service activity, and apply the first service policy to the identified attempted or successful data communications over the first wireless access network”, is further specified to read: “identify attempted or successful data communications over the first wireless access network that are associated with the first service activity, and apply the first service policy to the iden- tified attempted or successful data communications over the first wireless access network,” and wherein reducing data usage comprises blocking upstream data communications from an ap- plication the first service activity is associated with rather than being transmitted to the first wireless access network and wherein the one or more agents comprise a policy implementation agent configured to apply the first service policy to the identified attempted or successful data communications over the first wireless access network by operating on a data flow at one or more points in a device UPC_CFI_54/2024 UPC_CFI_396/2024 19 communication stack, the data flow comprising one or more related data transfers between a software component on the wireless end-user device and a network communication end point wherein one or more traffic measurement points in a device communication stack can be used to assist in service control verification” (AR 30 in revocation prong) or t) the first service activity is associated with an application on the wireless end- user device, a network communication end point, a traffic type, a content type, a download, an upload, or a combination of these; (dependent claim 2 of EP 2 391 947 B1) and/or u) wherein reducing data usage comprises blocking the first service activity when the wireless end-user device is connected to the first wireless access network and allowing the first service activity when the wireless end-user device is connected to the second wireless access net- work; (claim 6 of EP 2 391 947 B1 based on claim 1 or 2) or v) wherein the first service activity comprises a background download, a software update, or an activity deemed non-critical by the user, and wherein reducing data usage comprises delaying, deferring, throttling, or blocking the first service activity; (claim 10 of EP 2 391 947 B1 based on claim 1 or 2) and/or w) the first wireless access network is a cellular network; (claim 35 of EP 2 391 947 B1 dependent on claim 1 or 2 or 6 or 10) UPC_CFI_54/2024 UPC_CFI_396/2024 20 2. to pay the following periodic penalty payments to the Court in the event of a breach of the order in Section I.1: a) a penalty payment of EUR 1,000 for each sale of a product in the countries specified in Section I.1; b) a penalty payment of EUR 1,000 for each import of a product into the countries specified in Section I.1; c) a penalty payment of EUR 5,000 per day of Internet advertising or per day of print advertis- ing broadcast in the national language or in English or handed out to customers in the coun- tries specified in Section I.1; 3. to provide the Plaintiff with complete information on the extent to which they (the Defend- ants) have committed the acts referred to in Section I. 1. since August 29, 2015, stating a) the origin and distribution channels of the infringing products b) the quantities produced, manufactured, delivered, received or ordered as well as the prices obtained for the infringing products c) the identity of all third parties involved in the production or distribution of infringing prod- ucts d) the advertising carried out with respect to the products referred to in Section I.1., broken down by advertising mediums, their distribution, the distribution periods and the distribution areas; including evidence of these advertising activities; e) the prime costs broken down by cost factors and the profit generated, whereby - the list with the data of the accounting information is to be transmitted additionally in a format that can be evaluated by means of electronic data processing; - whereby copies of the corresponding purchase and/or order documents (namely invoices, alternatively delivery notes, most alternatively customs documents) must be submitted as proof of the information, whereby details requiring secrecy outside the required information may be blacked out; 4. to recall the products referred to in Section I.1. which have been put on the market, with reference to the infringing condition of the products determined by the court and with the binding undertaking to refund any fees and to bear any necessary packaging and transport costs as well as customs and storage costs associated with the return and to take back the products; 5. to hand over products referred to in Section I.1 in their direct or indirect possession or ownership to a bailiff to be appointed by the Plaintiff for the purpose of destruction and to bear the costs associated with the destruction; UPC_CFI_54/2024 UPC_CFI_396/2024 21 6. award the Plaintiff provisional damages to cover the anticipated costs of the damages pro- ceedings on the Plaintiff's side, whereby we leave the specific amount to the discretion of the court; 7. to provide appropriate security for the costs of the proceedings until the oral hearing; II. to declare that the Defendants are obliged to compensate the Plaintiff for all damages which it has suffered and will suffer as a result of the acts described in Section I.1. and com- mitted in the countries described in Section I.1. III. to order the Defendants to pay the costs of the proceedings, including those pertaining to the counterclaim. IV. to order that the decision is immediately enforceable. V. in the event that security is ordered, to allow the Plaintiff to provide it by means of a bank guarantee or savings bank guarantee and to set partial securities for each of the claims awarded and the decision on costs. VI. to order that a technically qualified judge is assigned to the panel. VII. to reject Defendants requests proffered in the Statement of Defence. Samsung requests in the infringement action: 1. to dismiss the action; 2. to order Claimant to pay the legal costs and other expenses incurred by the Defendants; in the alternative 3. to refrain from issuing a permanent injunction pursuant to Art. 63 (1) Agreement on a Uni- fied Patent Court (UPCA) and/or corrective measures pursuant to Art. 64 UPCA; in the further alternative 4. to, in lieu of permanent injunctive relief, award Claimant reasonable monetary compensa- tion in an amount to be determined by the Court in its discretion, however, no higher than EUR 2 million; in the further alternative UPC_CFI_54/2024 UPC_CFI_396/2024 22 5. to suspend the permanent injunction for a reasonable period of time, however, no less than six months from pronouncement of the decision; 6. make the enforcement of the decision, in particular in relation to injunctive relief, recall and destruction (counts I.1, I.4 and I.5 of Claimant’s prayers for relief), dependent on the provision of security in the amount of a) EUR …, or any other amount that the Court deems appropriate, for enforcement against Defendant 1, b) EUR …, or any other amount that the Court deems appropriate, for enforcement against Defendant 2, c) EUR …, or any other amount that the Court deems appropriate, for enforcement against Defendant 3, which may also be in the form of a bank guarantee (Art. 82 (2) UPCA, R. 352.1, 354.1 RoP); 7. allow Defendants to avert enforcement of the decision, in particular in relation to injunctive relief, recall and destruction (counts I.1, I.4 and I.5 of Claimant’s prayers for relief), by provid- ing security of the amount of EUR 2,200,000, or any other amount that the Court deems ap- propriate, which may also be in the form of a bank guarantee, without regard to any security provided by Claimant (R. 9.1 RoP) 8. to allocate a technically qualified judge with appropriate qualifications and experience in the field of information technology and/or network technology to the panel (R. 33 RoP). By way of Counterclaim for revocation, Samsung further requests: 1. to revoke European patent 2 391 947 B1 to the extent of claims 1, 2, 5, 6, 10, and 35; 2.a) to hold that auxiliary requests 1-3, 6-12, 16-24 submitted by Claimant on 16 December 2024 are not allowable; b) to hold that European patent EP 2 391 947 B1 cannot be maintained as requested by Claim- ant, including in the form of any of the auxiliary requests 1-3, 6-12, 16-24 submitted by Claim- ant on 16 December 2024 and the auxiliary requests 25-30 submitted by Claimant on 20 March 2025; c) to reject auxiliary requests 1-3, 6-12, 16-24 submitted by Claimant on 16 December 2024 and the auxiliary requests 25-30 submitted by Claimant on 20 March 2025; 3. to dismiss the Application to amend the patent; 4. to order Claimant to pay the costs. Headwater requests in the counterclaim for revocation: I. The Counterclaim for Revocation is rejected. UPC_CFI_54/2024 UPC_CFI_396/2024 23 II. Alternatively, the claims of European Patent EP 2 391 947 B1 are upheld with effect for the Federal Republic of Germany and the French Republic in form of the claims of one of Auxiliary Requests 1-3, 6-12, 16-30 (in ascending order). III. The Counterclaimants bear the costs of the proceedings. For the parties´ requests in the applications App_13435/2025 UPC_CFI_54/2024, App_13434/2025 UPC_CFI_396/2024, App_13924/2025 UPC_CFI_396/2024 and App_13925/2025 UPC_CFI_54/2024, reference is made to the Court´s order dated 16 April 2025 which is not repeated here for the sake of conciseness. In summary, Headwater requested the review of procedural orders made by the judge-rapporteur, requesting to include certain (invalidity) attacks, to add a number of additional “in particular” request in the infringement action and requesting leave to amend the patent. Samsung opposed these requests. THE PARTIES‘ ARGUMENTS Samsung argues that Headwater lacks entitlement to commence and conduct the present proceedings as, by virtue of a patent assignment agreement between the inventor Dr Raleigh and his former employer Qualcomm Inc., the Patent has automatically fallen into sole ownership of the latter. In the alternative, Qualcomm Inc. has at least co-ownership, so, failing to provide an express consent statement to enter into proceedings at the UPC by Qualcomm Inc., Headwater has no standing to sue. Also, the patent declares Headwater Partners LLC as applicant, so it is unclear whether the patent was part of a merger deal in which Headwater Partners LLC entered to become Headwater Research LLC. Regarding claim construction, Samsung argues that the features first and second wireless access networks require different network types or different access technology. Furthermore, one or more agents require autonomy, proactivity and self-dynamic behaviour which distinguishes agents from standard object-oriented software. Also, the user input must reflect the user’s intent to apply the first service policy to the first service activity, it is not sufficient that the user input only causes the first service policy to be applied to the first service activity. Finally, the user input is obtained at the same time of the connection to the first wireless access network. In defence to Headwater´s infringement allegation, Samsung argues that the accused products only differentiate between an unmetered and a metered connection, however, not between two network types or network access technologies. To this end, it is pointed out that there may also be unmetered mobile networks and metered WiFi networks. The accused product does not use agents, it is purely reactive. A listener as implemented in the java-class “NetworkPolicyMangagementService” is not configured to classify different access networks. The accused products are network-agnostic and employ a simple flag system. They do not require that user input be obtained at the time of the connection to the first wireless access network. UPC_CFI_54/2024 UPC_CFI_396/2024 24 Samsung is also of the opinion that the requests aimed to order cease-and-desist are disproportionate. This is because the patent in suit only has a small, if any, technical value and its relevance in the accused products is low. However, an injunction to cease-and-desist would have large effects on Samsung’s business, especially as the accused products are complex and heavy on investments. Headwater as a non-practicing entity (NPE) only pursues license expectations. Headwater contests Samsung’s objections to Headwater’s standing to sue and entitlement to the Patent. Furthermore, Headwater disagrees with Samsung’s claim interpretation and holds that the feature agent is to be broadly construed as “means” (German translation: “Wirkmittel”). Samsung’s non-infringement arguments and the disproportionality objection are furthermore contested by Headwater. In the counterclaim for revocation, Samsung argues that the subject-matter of the granted claims (and those of the auxiliary requests) extends beyond the content of the application as filed and is thus inadmissibly extended pursuant to Art. 123(2) EPC. Beside other deficiencies, the application as filed teaches a verifiable implementation of a service policy, whereas the claims of the Patent do not relate to the verification of the implementation of a service policy. Further, the application as filed does not disclose that an identification of a particular first wireless access network can be made, but only that the device can recognize the network type it is connecting to. Moreover, there is no disclosure that an agent executed by a processor makes the identification. Further, the identification/recognition of a network type the device is connected to is only disclosed in connection with an automatic adaptation of service policies based on the network (type). The application also does not disclose that one particular agent, or a plurality of particular agents, perform both the identification according to feature 1.4 and the acts specified in feature group 1.6. Nowhere does the application disclose that a service policy is configured to assist the wireless end-user device to reduce data usage associated with a particular service activity over a particular network, and control that particular service activity differently on another wireless access network. It is only shown that the user is allowed to instruct a billing agent to accept choices how to generally implement service control policies, but it is not disclosed that the user or the device itself could set a service policy to specially treat a particular service activity in a certain way. The application does not disclose that such a service activity shall be less than all service activities available. Controlling individual service activities via service policies (“micro-management”) is not disclosed in the original application. Finally, there is no mention therein that attempted data communications are identified and a service policy is applied to such attempted data communications.. Against novelty of the patent in suit, Samsung relies on nine prior art documents ZP1 – ZP9 wherein ZP1 – ZP7 are believed to demonstrate lack of novelty, or at least lack of inventive step, with regard to the patent claims as granted, ZP8 and ZP9 are further cited to attack some of the Auxiliary Requests. Further, Samsung asserts that the patent is invalid due lack of entitlement of Headwater. Headwater defends against all validity attacks brought by Samsung. According to Headwater, there is basis in the application as originally filed for the claimed subject matter. Verification UPC_CFI_54/2024 UPC_CFI_396/2024 25 is disclosed as optional in the application as filed and there is basis for the other claimed features (in combination). The Patent is also novel and inventive over the cited prior art disclosures. In relation to lack of entitlement as a ground for revocation, if a third party were the true owner (which Samsung are definitely not and do not claim to be), it would only be that third party that could file an action based on Art. 138(1)(e) EPC. For further details of the parties´ arguments and submissions, reference is made to the grounds for the decision below and to the case file containing the parties’ written pleadings. For the parties´ arguments in the applications App_13435/2025 UPC_CFI_54/2024, App_13434/2025 UPC_CFI_396/2024, App_13924/2025 UPC_CFI_396/2024 and App_13925/2025 UPC_CFI_54/2024, reference is made to the Court´s order dated 16 April 2025, which is not repeated here for conciseness. GROUNDS FOR THE DECISION The infringement action is unfounded as the (admissible) counterclaim for revocation is successful. 1. International jurisdiction and competence Samsung has entered an appearance in these proceedings. The jurisdiction and competence of the UPC, specifically the LD Munich, have not been challenged by Samsung (by way of preliminary objection) and are therefore to be assumed (cf. Rule 19.7 RoP and Article 26 of EU Regulation 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“the Brussels recast Regulation”)). Indeed, the (international) jurisdiction and the competence of the UPC, specifically the LD Munich, is based on Art. 31, 32(1) and 33(1)(a) UPCA, in conjunction with Art. 71b(2) and Art. 7(2) of the Brussels recast Regulation. The UPC, specifically the LD Munich, further has international jurisdiction and competence to decide on the counterclaim for revocation on the basis of Art. 24(4) in conjunction with Article 71b(1) and 71a(2) sub a of the Brussels recast Regulation and Art. 32(1)(e) UPCA. 2. The Patent and claim interpretation The Patent and its background The Patent concerns a verifiable device-assisted service policy implementation in wireless networks. According to the description, with the advent of mass market digital communications and content distribution, many access networks such as wireless networks, cable networks and DSL (Digital Subscriber Line) networks are pressed for user capacity, with, for example, EVDO (Evolution-Data Optimized), HSPA (High Speed Packet Access), LTE (Long Term Evolution), UPC_CFI_54/2024 UPC_CFI_396/2024 26 WiMax (Worldwide Interoperability for Microwave Access), and Wi-Fi (Wireless Fidelity) wireless networks increasingly becoming user capacity constrained. Although wireless network capacity will increase with new higher capacity wireless radio access technologies, such as MIMO (Multiple-Input Multiple-Output), and with more frequency spectrum being deployed in the future, these capacity gains are likely to be less than what is required to meet growing digital networking demand (paragraph [0001] of the Patent, paragraphs of the Patent are hereinafter referred to as [number] only). Similarly, although wire line access networks, such as cable and DSL, can have higher average capacity per user, wire line user service consumption habits are trending toward very high bandwidth applications that can quickly consume the available capacity and degrade overall network service experience. Because some components of service provider costs go up with increasing bandwidth, this trend will also negatively impact service provider profits [0002]. Further, according to the description [0012], with the development and increasing proliferation of mass market digital communications and content distribution, communication network capacity gains are being outpaced by growing digital networking demand. Against this background, the Patent specification states that there is a need for a communication system and method that provides for flexible service plans and management of user network services to provide consumer choice of more refined service plan offerings and efficient management of network capacity ([0013]). Also, the Patent aims to more deeply manage the level of services delivered to networked devices to provide cost effective services that match growing digital networking usage patterns ([0014]). As network capabilities and new networked device offerings grow, access network service providers will realize increasing value in opening up their networks to allow innovation and expanded offerings for network service consumers. However, opening up the networks to provide efficient third party definition of alternative service and billing models requires more flexible service and billing policy management solutions ([0015]). Based thereon, the underlying technical problem of the Patent may be formulated as to provide a wireless communication system and method that provides for flexible service plans and management of user network services to provide consumers with a choice of more refined service plan offerings whilst ensuring efficient management of network capacity. Claim interpretation As a solution to the above problem, the Patent claims a wireless end-user device having the features of claim 1. In accordance with what has been suggested by both parties, claim 1 can be broken down into the following features(exhibit K7): (feature group 1) [1] A wireless end-user device, comprising: [1.1] one or more modems (942, 946) for enabling the wireless end-user device to communicate over at least two wireless access networks, UPC_CFI_54/2024 UPC_CFI_396/2024 27 [1.1.a] the at least two wireless access networks comprising [1.1.aa] a first wireless access network and [1.1.bb] a second wireless access network; [1.2] a user interface (980); [1.3] memory (910, 920); and (feature group 4) [1.4] one or more processors for executing one or more agents: [1.4.a] the one or more agents are configured to identify when the wireless end-user device is connected to the first wireless access network, characterized in that (feature group 5) [1.5] the memory is configured to store a first service policy associated with the first wireless access network, [1.5.a] the first service policy comprising one or more first network policy settings or rules, [1.5.b] the first service policy configured to assist the wireless end-user device to reduce data usage associated with a first service activity over the first wireless access network, [1.5.b.aa] the first service activity being less than all service activities available to the wireless end-user device, [1.5.b.bb] the first service policy for enabling the wireless end-user device to control the first service activity on the first wireless access network differently from how the wireless end-user device controls first service activity on the second wireless access network; and (feature group 6) [1.6] the one or more agents are further configured to: UPC_CFI_54/2024 UPC_CFI_396/2024 28 [1.6.a] obtain, through the user interface, a user input indicating to apply the first service policy to the first service activity when the wireless end-user device is connected to the first wireless access network, [1.6.b] identify attempted or successful data communications over the first wireless access network that are associated with the first service activity, and [1.6.c] apply the first service policy to the identified attempted or successful data communications over the first wireless access network, thereby reducing data usage over the first wireless access network associated with the first service activity. In view of the debate between the parties and the points at issue, the interpretation of some of the features of the claim requires further consideration. According to Art. 69 EPC in conjunction with the Protocol on its interpretation, the claim is not only the starting point but also the decisive basis for determining the scope of protection of a European Patent. The patent claim is to be interpreted from the point of view of a person skilled in the art. The interpretation of a patent claim does not depend solely on the strict, literal meaning of the wording used. Rather, the description and the drawings must always be taken into account as aids to the interpretation of the claim and not only to resolve any ambiguities in the claim. This does not mean, however, that the claim only serves as a guideline and that its subject-matter also extends to what, after examination of the description and drawings, appears to be the protection sought by the patentee. In applying these principles, the aim is to combine adequate protection for the patent proprietor with sufficient legal certainty for third parties. These principles for the interpretation of a patent claim apply equally to the assessment of the infringement and the validity of a European patent. (UPC_CoA_335/2023, Decision of 26 February 2023 in conjunction with Decision of 11 March 2024, headnote 2 and para. 73 - 77 – NanoString v 10x Genomics; UPC_CoA_1/2024, Decision of 13 May 2024, mn. 26 – VusionGroup v. Hanshow; UPC_CoA_768/2024, Order of 30 April 2025, mn. 37 – Insulet v EOFlow; also: EPO EBoA G 1/24, Decision of 18 June 2025 - gathered sheet). Skilled person In the present case, the parties agree that the skilled person has a university degree in information technology with a specialization in network technology. He or she has many years of practical experience in the technical field of data transmissions between mobile devices, as well as the protocols and systems that enable communication between the participants in a mobile network. In particular, the skilled person has knowledge and experience of ways to save power and network resources when transmitting data via wireless networks. The Court sees no reason to adopt a different definition of the skilled person. Feature group 1 Claim 1 concerns a wireless end-user device. A wireless end-user device [1] is understood as any device that is intended to be used by end-users that can be (wirelessly) connected to a wireless network (or “radio access network”, “RAN”). Examples of end-user devices are UPC_CFI_54/2024 UPC_CFI_396/2024 29 smartphones (or cell phones), tablets and other types of user equipment hereinafter referred to as “UEs”. Such UEs are represented by reference 100 e.g. in Figures 8-9 and 16-21 of the Patent. A wireless access network generally connects end-user devices to an access point (AP). Via the access point, the UE can typically access a core network, but this is not specified in the claim. A RAN (wireless access network) is represented by a dotted ellipse in Fig. 8 and by reference number 1610 in Figures 16-20. By way of example, in Figures 16-20 of the drawings, the RAN, 1610, enables the UE, 100, to access the Internet, 120. However, the claim is not limited to accessing the Internet. According to feature [1.1], the UE comprises one or more modems for enabling the wireless end-user device to communicate over at least two wireless access networks. The claim does not limit the number of wireless access networks the UE is able to connect to (other than that this number must be a minimum of two) nor does the claim specify the technology underlying each of said access networks. From the use of the terms “a first wireless access network” and “a second wireless access network”, feature [1.1aa] and [1.1bb], respectively, the skilled person, contrary to the interpretation adopted by Samsung, will not understand that the first and the second wireless access network must have a different underlying technology. Firstly, the literal wording “first” and “second” implies nothing more than that one network is being referred to, i.e. is labelled or is identifiable, as the first and another one as the second. The access networks must be distinguishable in some way, but this is not necessarily with respect to their underlying technology (at the oral hearing, the Court gave the example of a first and a second wireless access network, one being “UPC-WLAN” and the other one being “BAYERN WLAN”, both being wireless LANs differing only in their nomenclature). No particular hierarchy or other specific (technical) requirement can be inferred from the claim wording. The Patent exemplifies different embodiments throughout Figures 4 to 8 which seem to have two wireless access networks using different technologies (e.g. 2G, 3G, 4G, WiFi etc). However, as stated in [0063], various embodiments in the description can be implemented independent of the wireless access network technology, and for example, can be implemented in 3G, 4G and any other wireless access network technology. In addition, the embodiment illustrated in Fig. 3 and [0054]-[0055] envisages the possibility for the UE to roam between two wireless access networks based on the same access technology (3G or 4G) but associated with different central providers (Central Provider #1 and Central Provider #2). Hence, the skilled person would not understand the claimed first and second wireless access networks as necessarily using different technologies. When considering the technical function of feature [1.1], the skilled person does not come to a different interpretation. As stated above, the purpose of the invention is to provide a communication system and method that provides for flexible service plans and management of user network services to provide consumers with a choice of more refined service plan offerings whilst ensuring efficient management of network capacity. This purpose does not imply that the first and second wireless access networks have to rely on different technologies. UPC_CFI_54/2024 UPC_CFI_396/2024 30 The further context of the claim as a whole – which must be considered when interpreting a patent claim (UPC Court of Appeal, 13 May 2024 UPC_CoA_1/2024, SES/Hanshow, para. 29) – also does not support Samsung´s interpretation. To the contrary, feature [1.5.b.bb] requires that a first service policy for enabling the wireless end-user device to control the first service activity on the first wireless access network is configured differently from how the wireless end-user device controls the first service activity on the second wireless access network. Thus, the claim requires the service policies to be configured differently – the type of network is left open. The claim, in other words, as correctly brought forward by Headwater, allows that two (for example) WLAN networks, i.e. wireless access networks having the same underlying technology, are viewed differently in terms of their policy configurations. Feature group 4 The debate between the parties on the interpretation of feature group 4 focusses on the interpretation of the term “agent”. In this respect, Headwater construes this feature broadly to distinguish functions carried out by one or more processors of the device from functions carried out on a server, i.e. outside the device, In support, Headwater refers to the German translation of the Patent in which the (broad) term “Wirkungsmittel” is used. Samsung argues that the skilled person at the priority date would have assigned a specific technical meaning to the term “agent”: computer programs that act on behalf of a user or another program in a kind of agency relationship and are characterized in particular by a certain autonomy and flexibility. In the opinion of the Court, the term “agent” will be interpreted by the skilled person as a software unit that is characterized by its capability to perform an assigned (or delegated task) in an autonomous way without requiring any further signals or an external control intervention but possibly communicating with other agents during the process. In par. [0039] it is stated that a device agent may be a component of a service processor that performs service policy implementation or management functions. Para. [0102] mentions the division in functionality between one device agent and another. As exemplified in Figures 16 – 21, agents may implement a single specific function such as “billing”, “policy control”, “service monitor”, “application interface” etc. In the light of the description, an agent is therefore characterized by having a functional role, or a functional responsibility, to perform a specific task. To the skilled person, it is furthermore apparent from the aforementioned figures showing an Agent Communication Bus 1630 that the agents may communicate with each other. The agents also react in a dynamical way to user input. According to feature group 4, the UE comprises one or more such agents which can identify when the UE is connected to the first wireless access network. Example of such agents can be found in par. [0039]. For the skilled person, it is thus clear that the term “agent” – as used in the authentic English text of the Patent (cf. Art. 70 EPC) – cannot be reduced to the word “means” (“Wirkungsmittel”) as this term does not reflect the self-contained, independent and responsible nature of an agent as set out above. Furthermore, the one or more agents (hereinafter “the agent”) is/are configured to identify when the wireless end-user device is connected to the first wireless access network (feature [1.4a]). This means that the agent has to be able to establish the identity of, i.e recognize, the specific network it is connected to, whereby, as follows from the interpretation of “first” and UPC_CFI_54/2024 UPC_CFI_396/2024 31 “second” access network provided above, the agent has to be configured to do so also when the first and second access network have the same underlying technologies. Referring to the example above, the agent must be able to identify whether it is connected to the “UPC WLAN” or to the “BAYERN WLAN” network. Feature group 5 According to feature group 5 (feature [1.5]), a first service policy is associated with the first access network, which is stored in a memory of the UE. According to feature [1.5.a], this first policy is defined by a set of rules and/or settings which, in accordance with feature [1.5.b], has to enable the UE to reduce (to an unspecified extent, e.g. by blocking, throttling or traffic shaping, delaying or assigning the first service activity to a lower-priority traffic queue, see sub-claims 5, 7, 8 and 9, respectively) data consumption associated with the first service activity over the first wireless access network. Other than by this functional requirement, the rules or settings of the first policy are not further defined in the claim. This also means that there may be other rules included in the policy, but, equally, these are not further detailed in the claim. Likewise, the (first) service activity is not further defined in the claim other than that it needs to be an activity that involves the usage of data. Par. [0016] states that “service activity is used to refer to any service usage or traffic usage that can be associated with, for example, an application; a network communication end point, such as an address, an URL or other identifier with which the device is communicating; a traffic content type; ...email, text, SMS or other messaging ,..; VoIP services, video services; a device usage event that generates a billing event;…device location; …or other categories of user device activity that can be identified, monitored, recorded, controlled or processed in accordance with a set of verifiable service control policies”. Hence the term “service activity” is aimed at covering any activity of the UE that can be identified, monitored, recorded, controlled or processed in accordance with a set of service control policies. Examples of the first service activity are given in claim 10, i.e. a background download, a software update, or an activity deemed non-critical by the user. Further, as the first activity is less than all service activities available to the UE (feature [1.5.b.aa]), it follows that some service activities of the UE are not controlled by the first service policy. Finally, the first service policy must enable the UE to control said first service activity differently on the first and the second wireless access network (feature [1.5.b.bb]). This combination of features, in the context of the claim in the light of the description, contributes to the aim of the claimed invention, which is to allow the end-user better control of their data usage on a particular network. For example, it may be more economical to delay downloads until the device connects to a free or flat-rate WLAN, rather than proceeding with a download on a metered cellular network. Feature group 6 In line with the aforementioned aim of the invention, in accordance with feature group 6, the one or more agents are further configured to obtain, through the user interface (feature [1.2], for example a keyboard; 980 in Fig. 9], input from a user indicating to apply the first service policy to the first service activity when the wireless end-user device is connected to the first wireless access network. The claim does not require that the user specifically selects a certain network. It is sufficient that the user’s input reflects the instruction to apply the first service UPC_CFI_54/2024 UPC_CFI_396/2024 32 policy (also cf. par. [0190] which elaborates on how a user can influence the service policies implemented). The parties disagree as to whether the “when” in feature [1.6.a] refers to the time of obtaining the input or to the time of applying the policy. However, for the skilled person, who will consider the feature “obtaining […] a user input indicating to apply the first service policy to the first service access when the wireless end-user device is connected to the first wireless access network” in the context of the claim as a whole and in the light of the overall aim of the invention, it is clear that the user input does not have to be obtained after the UE is connected to the first access network. The Court is of the opinion that the “when” refers to the time of applying the policy and not to the time of obtaining the input. From a technical functional point of view, the input to apply the policy can just as well be obtained before the UE is connected to the first network, i.e. it may be pre-set so that it is applied when (as soon as) the connection to this network occurs. Interpreting the feature otherwise would make little technical sense in view of the aim of the Patent. If the “when” would pertain to the time of obtaining the input, this would mean that the user would always have to (re-)enter an input whenever the device connects to the first network. This would defy the purpose of giving the end-user better control over their data usage. The agent must in accordance with feature [1.6.b] identify attempted or successful data communications associated with the first service activity. For example, if the user has set a rule not to download over a cellular network, the device must through the agent detect when a download is attempted (i.e. has been tried, but has not (yet) succeeded) or has succeeded over such network. The first service policy is then in accordance with feature [1.6.c] applied to the identified attempted or successful data communications over the first wireless access network to reduce data usage over the first wireless access network associated with the first service activity. The skilled person will understand that, functionally, “applying” amounts to the enforcement of the first service policy, thereby aiming to reduce data usage (also see feature [1.5.b]). To give a practical example: if a download is already in progress and the network changes, the device must recognize this and pause or stop the download (with the possibility of resuming it when the preferred network is available again). Against the background of this claim interpretation, the LD Munich will now turn to the counterclaim for revocation. UPC_CFI_54/2024 UPC_CFI_396/2024 33 3. The counterclaim for revocation Admissibility The LD Munich will first deal with the counterclaim for revocation, which is admissible and is well-founded on the ground of added matter. The LD Munich has international jurisdiction and competence to decide on the counterclaim for revocation (see above, “International Jurisdiction and competence”). No other concerns regarding the admissibility of the counterclaim have been raised by Headwater nor are these apparent to the Court. The counterclaim is therefore admissible. In view of the discussion between the parties as to whether Headwater is the only registered and material patent proprietor, and thus entitled to file the infringement action, this panel is of the opinion that this does not need to be decided, as the action is to be dismissed in any case. Regarding the counterclaim for revocation, Rules 25.1 and 42 of the Rules of Procedure (RoP) stipulate that a counterclaim for revocation may be filed against the registered proprietor. If the registered proprietor is not the material proprietor, they must inform the latter and apply for substitution. As this did not happen, Headwater was rightly sued in the context of the counterclaim for revocation. Added matter Legal principles The UPC Court of Appeal has set out the legal standard for the assessment of added matter in its order dated 14 February, 2025 in case UPC_CoA_382/2024 (Abbott/Sibio), par. 52 et seq. There is added matter if the claim as granted contains subject-matter that extends beyond the content of the application as filed. In order to ascertain whether there is added matter, the Court must thus first ascertain what the skilled person would derive directly and unambiguously using his common general knowledge and seen objectively and relative to the date of filing, from the whole of the application as filed, whereby implicitly disclosed subject- matter, i.e. matter that is a clear and unambiguous consequence of what is explicitly mentioned, shall also be considered as part of its content. The assessment of added matter cannot be restricted to only those parts of the original application which the patent proprietor indicated as a basis for an amended claim during the examination proceedings at the EPO, since a proper understanding of these parts also requires an assessment of their content in the context of the disclosure of the application as a whole. It is not required that a claim uses the exact same wording as used in the original application, as long as the skilled person would derive the combination of features from the whole application (mn. 68). Omitting a feature from a disclosed embodiment can be allowable if this feature does not contribute to, and is thus not relevant for, the technical teaching of the invention as disclosed in the original application. In other words, omitting a feature can be allowable if the skilled person would not consider said feature necessary for achieving the overall aim and effect of the invention (mn. 75). If there is no inextricable link between the features of several embodiments, not including a feature in an amended claim cannot be considered as an intermediate UPC_CFI_54/2024 UPC_CFI_396/2024 34 generalization (mn. 78). Omitting a feature from a disclosed embodiment may equally be allowable if it is clear from the (functional) language of the claim that said feature is implicitly part of the subject matter of the claim as amended (mn. 82). When omitting a feature from the claim language (as amended) does not convey new information to the skilled person vis- à-vis the application as originally filed, the omission does not constitute added matter (mn. 87). From the principles as provided by the Court of Appeal, it follows that it is always required to ascertain what is directly and unambiguously disclosed to the skilled person in the application as filed and to subsequently assess whether an amendment introduces subject matter that comprises technical information going beyond the subject matter that is disclosed in the application as originally filed. This test is consistent with the rationale of the prohibition of added matter within the context of the first-to-file system of the EPC, which is a matter of legal certainty for third parties relying on the application and is to prevent the situation wherein a patentee unwarrantedly improves its position only after filing its patent application. In line with this, it follows from the above principles set out by the Court of Appeal that the content of an application must not be considered to be a reservoir from which features pertaining to separate embodiments of the application could be combined in order to artificially create a particular embodiment which has not so been disclosed in the application as filed. This test essentially aligns with the long-standing case law of the EPO Boards of Appeal (G2/10; G 3/89; G 11/91). The present case is not affected by deviations of the EPO BoA case law on added matter in some details. The present case Applying the above principles to the case at hand, the LD Munich finds that the subject-matter of the Patent extends beyond the content of the application as filed. Samsung has argued that the subject-matter of claim 1 and of the claims depending thereon, including claims 2, 5, 6, 10, 35 extends beyond the content of the application as originally filed (WO-A-2010/088072, hereinafter referred to as “SP1”, the exhibit number). Samsung pointed out, uncontested by Headwater, that during the prosecution of the Patent, Headwater, after having received a negative opinion from the International Searching Authority about the original claims of the application, replaced the original 68 claims with 39 new, different claims in the regional phase before the EPO. As a basis in the original application for the amendment, Headwater relies on various parts of the description of SP1. As a most far-reaching argument, Samsung has referred to par. [0070] of SP1, according to which “a detailed description of one or more embodiments of the invention is provided below along with accompanying figures that illustrate the principles of the invention. The invention is described in connection with such embodiments, but the invention is not limited to any embodiment. The scope of the invention is limited only by the claims and the invention encompasses numerous alternatives, modifications and equivalents”, arguing that this passage would necessarily limit the invention to the independent claims as originally filed in the sense that – as the LD Munich understands Samsung´s position – the claims could only be UPC_CFI_54/2024 UPC_CFI_396/2024 35 amended by adding features from the dependent claims or features set forth in the described embodiments on top of the original independent claims. The LD Munich is of the opinion that there is no added matter for the mere reason that the original claims have been replaced entirely by a new claim set which is not based on the original (independent) claims. As set out above, under the applicable legal principles, it must be determined what the disclosure is of the application as filed – from the perspective of the skilled person. The skilled person will not understand from par. [0070] of SP1, which deals with scope of protection, that the original (independent) claims define the sole technically relevant teaching or disclosure contained in the application. Rather, following the principles set out above, the skilled person will rely on the application as a whole and will realise that its entire contents is relevant for what is disclosed to the skilled person. The original claims (as well as par. [0070] of SP1) form an integral part of that disclosure, but the disclosure is not limited thereto. What the skilled person would derive from the application as filed: “verifiable” In the opinion of the Court, the subject matter of the invention disclosed in the original application and as claimed in original independent claims 1, 63, 67-68 was directed to a verifiable device-assisted service policy implementation in a wireless network. See e.g. original claim 1 (marking by the Court): That the originally disclosed invention concerns a verifiable service policy is confirmed by the title “Verifiable device assisted service policy implementation” (underline by the Court). The skilled person would understand that the disclosed invention was aimed at avoiding dense base station deployment as stated in par. [0077]-[0078] of SP1, that is a problem connected with the general technical problem of managing more efficiently the network capacity identified above (also see SP1, [0082], “better manage network capacity”). The originally filed application describes various embodiments where the verification of the implementation of a service policy is assisted by a UE. In essence, the application teaches that such verification is based on monitoring the service activity of the UE (SP1, par. [0096]). This monitoring is carried out by measuring data traffic in relation to said service activity. The service usage measures derived therefrom are then compared against expected service usage behaviour given the service policies that are intended to be in place (SP1, par. [00267]- UPC_CFI_54/2024 UPC_CFI_396/2024 36 [00268]). In case a mismatch is noticed, corrective actions can be taken such as throttling/shaping traffic of the UE (SP1, par. [00275]) or even quarantining the UE (SP1, par. [00270]). The implementation of the service policies including the monitoring of these service activities and the verification against said policies can be carried out either by the network [e.g. base station, RAN for the traffic monitoring (SP1, par. [0096]), service controller 122 for the verification against the service policy (SP1, par. [00101], [00267] or by the UE (SP1, par. [00100]) (service processor 115 for the service policy verification) or distributed between the network and the UE (SP1, par. [0081]- [0082], par. [0096] last sentence, par. [00274]). From the original disclosure, the skilled person would take that the policy (implementation) being verifiable was foreseen as an integral and indispensable part of the invention. For the skilled person, this would also make technical sense as – against the background of the problem that the original application aims to solve – the network provider wants to retain a degree of control (by verification) over the options the end-user has to manage their data usage. Contrary to Headwater´s argument, the fact that the end-user may control certain aspects of service activity or that certain service policies can be controlled by the user does not imply that verification is not needed, at least for service activities that are not controlled by the user. Headwater considers that the verifiable character of the implementation of the service policy is optional. In this context, reference was made to par. [00145] of SP1, according to which “in some embodiments the service processor 115, as discussed herein, can be configured to provide device assisted service monitoring, control, billing and/or verification across not just when connected to the WWAN via the WWAN modem but also connected to the other networks.” According to the Court, the skilled person, however, does not conclude from this passage that verification of the service activities is optional since this verification can be performed at the network side or distributed between the network and the UE. This passage rather discloses that it is an option to carry out the verification even when the service processor of the UE is connected to a network other than the WWAN – but it still presupposes that verification is being done. The same applies to par. [00162] of SP1, according to which “in various embodiments, the verification embodiments discussed herein for service policy implementation verification or service policy implementation compromise protection can be applied.” However, this passage is situated in a section related to service processor (115) configurations for intermediate networking devices (par. [00152] of SP1) and more specifically to the embodiment illustrated in Fig. 15C in relation to Fig. 15A. In this embodiment, the UE is provided with a bus structure extension (1510) enabling it to be connected to a LAN with a wire line and to a WWAN (e.g. 3G or 4G network (par. [00160] of SP1). This architecture is said to provide a verifiable managed service par. [00161] of SP1) and to allow service policies to be changed from network to network (ibid.). For the skilled person, the above-quoted passage teaches that the various embodiments related to verification of service policy implementation are applicable to this architecture and not that the verification can be dispensed with. Contrary to Headwater´s assertion par. [00333] of SP1 also does not disclose an embodiment in which the verification is dispensed with. Rather, this passage is situated in a section related to device assisted service control and traffic control and more specifically to a functional UPC_CFI_54/2024 UPC_CFI_396/2024 37 diagram (Fig. 29) of the service processor (115) in the UE (110). In this embodiment, the service processor comprises several agents, e.g. a Service Monitor Agent (next to the Access Control Integrity Agent in Fig. 29; 1696 in Fig. 16) and an Application Interface Agent (middle of Fig. 29; 1693 in Fig. 16), the latter agent performing measurements at various points (labelled I to VI) and forwarding “service measures” to the former. Hence, the skilled person understands that these agents perform functions to assist in verifying that the service control is properly implemented. Nor do par. [0081]-[0089] of SP1 disclose – directly and unambiguously for the skilled person – an embodiment of the invention without verification of service policy implementation. Even if Headwater would be followed in that the skilled person would have realised that to solve the general technical problem (Headwater refers to par. [0072] of SP1) verification is not necessary, this does not amount to an (implicit) disclosure of a technical teaching of any embodiment without verification. The application, as a whole, has as its core technical teaching that verification is part of the invention – that it might have been obvious for the skilled person to leave out verification is irrelevant for the question of adequate disclosure which must be direct and unambiguous. In this respect, the skilled person understands that par. [0081]- [0082] of SP1 relate to the distribution of the service policy implementation verification between the core network and the UE and do not disclose an embodiment devoid of such a verification. Looking at the cited par. [0089] the person skilled in the art would understand from these paragraphs that verifiable service policy implementation can be used for overcoming the problem of device billing being compromised, hacked or spoofed, but not that it can be dispensed with. Furthermore, several embodiments related to billing are relied upon by Headwater. These are illustrated in Fig. 50 et seq. and are described under par. [00409] of SP1, entitled “interface overlay for billing/IPDR feed mediation”. This title alone suggests that the billing functionality is a feature which comes on top of the embodiments achieving verifiable service policy implementation (e.g. Fig. 16). This is confirmed by the fact that the service processor 115 and the service controller (4825, Fig. 50; 122, Fig. 16) are present in Fig. 50 and that the service controller represented therein comprises a policy management server as in Fig. 16 (1652, Fig. 50 and Fig. 16). None of the further paragraphs cited by Headwater convince the Court that the skilled person would deduce from the application as filed that verification is optional. Par. [00228] of SP1 refers to an embodiment where an application interface agent (1693, Fig. 16), within service processor (115), performs certain tasks to assist service policy implementation. This embodiment relates to a variant of UE-assisted verification of service policy implementation and does not imply that this verification is optional. Par. [00342] of SP1 refers to enhancements of the device (UE) communication stack that can be implemented in the kernel space of the OS of the service processor (Fig. 30). These enhancements allow for implementing access control policy and/or service monitoring policy. They do not exclude a verification of service policy implementation by an external service controller, irrespective of any tampering. Par. [00542] of SP1 refers to the possibility of loading an agent software at the time of manufacture and does not disclose excluding a verification of service policy implementation. UPC_CFI_54/2024 UPC_CFI_396/2024 38 In sum, the Court has ascertained that the skilled person would deduce from the application as filed, as a whole, that its disclosure relates to the verifiable implementation of a (first) service policy. This verifiability is disclosed in the application as filed as necessary for achieving the overall aim and effect of the invention, i.e. as an integral part of the invention. Claim 1 as granted does not claim any form of verification of (the implementation of) a service policy nor is this feature implicitly part of the claimed subject matter. By omitting this feature, the claimed subject matter extends beyond the content of the application as filed. In other words, by extending the claim to embodiments that do not require verifiability of the first service policy implementation, technical information is provided which is not part of the application as filed. Claim 1 therefore adds matter. The same applies to dependent claims 2, 5, 6, 10, and 35 which do not require any verification either. Combination of features as claimed not originally disclosed Apart from, and in addition to, the impermissible extension of subject matter by omitting the verifiable (implementation of the) first service policy from the subject matter as originally disclosed, there is also added matter because the combination of features as claimed in amended claim 1 is not – directly and unambiguously – disclosed in the application as filed. It is undisputed between the parties that the application as filed does not disclose – in the specification, claims or Figures – one single embodiment having the features of claim 1 as granted. During the prosecution proceedings at the EPO, the applicant relied as a basis for feature group 1, on para. [00115] of the specification and Figure 3 to support a “first and a second network” (first amendment). Figures 1 – 8 were relied on to support a “wireless end-user device”. Concerning feature 2 (user-interface), the Applicant based this on para. [00138] of the specification. For feature group 5 (memory), paras. [00069], [00135], [00075], [00115], [00076], [00086], [00087], [00129], [00130], [00161], [00202], [00204], [00210], [00211], [00213], [00232], [00233], [00243], [00245], [00252], [00254], [000255], [0274], [00292], [00341], [00431], [00437], [00439] and [00526] of the specification were relied on. Finally, for feature group 6 (one or more agents), paras. [00069], [00167], [00210], [00213], [00232], [00252], [00254], [00255], [00220], [00226], [00315] and [00334] were seen as providing sufficient basis. At the hearing, Headwater focused its submissions on Figure 16, par. [0084], [0078], [0069], [00191], [00100], [00254] and [00255] of SP1. The Court notes that the fact that there is not a single example, Figure or embodiment disclosed in the application as filed having all of the features of granted claim 1, in the combination as claimed, is as such not decisive for the question of whether an amendment introduces added matter. At the end of the day, it follows from the principles as set out above that only the disclosure of the application as a whole to the skilled person is decisive. That being said, the fact that the application as filed in the present case has a completely different claim set compared to the patent as granted, lists more than 1000 “embodiments” without a clear hierarchical structure (the expression “in some embodiments” is used more than 1000 times, leading to an astronomical number of potential combinations), spread out over more than 300 pages, and includes 64 (elaborate) Figures is indeed a relevant factor for the UPC_CFI_54/2024 UPC_CFI_396/2024 39 assessment of whether the skilled person would deduce the subject matter of the amended claims from the application as filed. Under these circumstances, the isolated disclosures of a number of features – whereby individual disclosures are even in dispute between the parties, and which already is lacking for some features (see the Court´s assessment below) – in several embodiments is not to be equated to a direct and unambiguous disclosure of the combination of said features. Claiming a combination of seemingly individually disclosed features, without the application providing the skilled person with any guidance to do so, boils down to artificially creating an embodiment which constitutes added matter. This is the case for claim 1 of the Patent as is further detailed below. It seems undisputed between the Parties that features 1, 1.1, 1.1.a, 1.2, 1.3, 1.4 of claim 1 are individually disclosed in the originally filed application (SP1). • features 1.4 and 1.4a taken in combination Features 1.4 and 1.4a of the claim as granted, taken in combination, are not directly and unambiguously disclosed in the application as filed. There is no explicit disclosure in SP1 of “one or more agents configured to identify when the wireless end-user device is connected to the first wireless access network”. Such disclosure also cannot be deduced from par. [00213] of SP1. From the embodiments described in this paragraph, the person skilled in the art understands that service policies are adjusted depending on the type of network the UE is connected to, such as billing, user notification, data usage, etc. The opening sentence of par. [00213] may appear more general in that service policies are automatically adapted based on the network the device is connected to. However, this sentence is followed by a list of examples related only to types of wireless access networks: macrocell, microcell, picocell, femtocell. This at least creates an ambiguity for the skilled person as to whether the first sentence relates to the types of network as well. Contrary to the assertion of Headwater, identifying a wireless network is not tantamount to identifying a type of a network since – as follows from the correct claim interpretation as set out above – a UE can be connected to a plurality of wireless access networks of the same type. Disclosure can also not be found in par. [00195] in combination with Fig. 16 in SP1: UPC_CFI_54/2024 UPC_CFI_396/2024 40 Even though it is described that the service monitoring function (e.g. performed by service monitor agent 1696 (see Fig. 16 below, yellow markings by the Court) and/or some other agent or combination thereof on the device) is used in part to determine which access networks are being connected to, this paragraph is to be found under the header “Service Processor and service controller for verifiable service monitoring, notification and control” (par. [00166] SP1) and will be understood by the skilled person in that context. The service monitor agent is defined, in par. [00188] of SP1, under the same header, as providing measures of service usage or service activity. The skilled person would not deduce from this teaching that an agent is configured to identify whether the UE is connected to the first access network (as claimed and in the interpretation set out above), i.e. generalised from the service monitoring function. This amendment is thus not directly and unambiguously disclosed in SP1 and for that reason adds subject-matter. • features 1.4 and 1.4a in connection with features 1.6 and 1.6.a Samsung argues that features 1.4 and 1.4a in combination with 1.6 and 1.6.a introduce added subject-matter because the original application nowhere discloses one or more agents configured (features 1.4, 1.6) both to identify a first wireless access network (feature 1.4.a) and to obtain, through an interface, a user input indicating to apply a first service policy when the wireless end-user device is connected to the first wireless access network (feature 1.6.a). The Court agrees with Samsung that this combination of features is not disclosed directly and unambiguously in the application as filed. The parts of the application as filed that are cited by Headwater, i.e. par. [00210], [00211], [00282], [00205], [00081], [00274], [00191], [00222], [00314] and [00195], do not provide adequate disclosure. At most, from these passages, the skilled person will deduce that in general a function can be partitioned into different agents. However, they fail to disclose that the same one or more agents are configured to identify when the wireless end-user device is connected to a given (the first) wireless access network (1.4 and 1.4a) and to obtain, through the user interface, a user input indication to apply the first policy to the first activity when the wireless end-user device is connected to the first wireless network. No other conclusion follows when Fig. 16 of SP1 is taken into consideration, UPC_CFI_54/2024 UPC_CFI_396/2024 41 together with paragraphs [00254]-[00257] and [00333] of SP1 as emphasised by Headwater during the oral hearing. Fig. 16 discloses different agents, such as the “policy control agent”, a “service monitoring agent” and a user interface 1697. Par. [00254] of SP1 adds that the user interface can “accept user feedback” and can “allow the user of the device to modify their…service profiles”. Par. [00255] of SP1 describes various options for the user to control or influence the service policy implementation. However, no disclosure can be found of the specific combination of features as claimed. • feature group 1.5 Samsung further correctly argues that feature group 1.5, in particular features [1.5.b], [1.5.b.aa] and [1.5.b.bb], introduces added subject-matter since the original application does not disclose that a (first) service policy is configured to assist (the wireless end-user device) in reducing data usage associated with a particular service activity (first service activity) over the first wireless access network, that this service activity can be controlled differently on a second network (feature [1.5.b.bb]), or that the settings and rules of the (first) policy would be stored in a memory (feature [1.5] and [1.5.a]). The basis indicated by Headwater, par. [00204], [00255] and original claim 29 of SP1 do not disclose feature group [1.5]. Par. [00204] discloses policy control agent 1692 (indicated in Fig. 16, depicted below, marking by the Court) performing a service control algorithm. The policy control agent can be instructed by the user, through billing agent 1695, to manage service activities to assist the user in controlling service costs. For example, the policy control agent can perform traffic shaping leaving many service usage activities unaffected while controlling down usage of the most aggressive ones. Hence, according to this paragraph, traffic shaping/ throttling is aimed at selectively controlling different service activities and not the same service activity over different networks. Par. [00255] relates to the control of service policy implementation in accordance with the preferences of the user (see above). The user may be offered a set of choices of pre-packaged (service control) setting options determined by the service provider, the device manufacturer, the device distributor, the mobile virtual network operator (MVNO) or the service provider, UPC_CFI_54/2024 UPC_CFI_396/2024 42 while allowing the user to decide or influence the decision on which service usage activities are controlled. Original claim 29 concerns implementing “a second service policy for assisting control of the communications device [i.e. the UE, Court] use of a first service on a second network” and to “monitor use of the first service based on the second service policy”. It is unclear to which embodiment of the description this claim refers to, but the skilled person will not infer from this wording that a first service policy would control a service activity differently on a first and a second wireless access network. In original claim 29 (which refers back to and thus includes the features of original claim 1) there are two service policies, a first and a second service policy, the implementation of which is verified, and whereby the first and second networks are not necessarily wireless access networks, whereas in feature 1.5.b.bb there is only one service policy, no verification of implementation of this policy is required and both first/second networks are wireless access networks. Hence, feature group 5 is not clearly and unambiguously disclosed from the originally filed application. • feature group 1.6 ▪ features 1.6 and 1.6.b Headwater relies inter alia on par. [00215], [00222], [00314], [00332], [00333], [00334] and [00335] of SP1 to show that features 1.6, 1.6b are disclosed in the originally filed application. These paragraphs relate in fact either to the “policy implementation agent” 1690 or the “service monitor agent” 1696 of the user device (see Fig. 16 above). The policy implementation agent 1690 is in charge of traffic shaping, applying QoS rules, or acts as a firewall or performs traffic inspection or characterization. The fact that the policy implementation agent may perform the traffic inspection at the application layer, par. [00215] of SP1, or that the service monitoring agent 1696 or the “application interface agent” 1693 may perform traffic inspection at API sockets, par. [00222] of SP1, does not explicitly nor implicitly disclose that the agent(s) (and even less the one or those already in charge of the identification of the connection between the end-user device and the first wireless access network according to feature 1.4.a) are able to identify “attempted or successful data communications” over the first wireless access network, associated with the first service activity. Although “traffic tagging” associated with a service activity can be performed by the service monitor agent (par. [00334] of SP1), such tagging does not appear in claim 1. The possibility to omit “traffic tagging” in this context is not disclosed by the application nor is it apparent to the skilled person. Last, the description of traffic tagging under par. [00334] of SP1 is not specific to a given (a first) wireless access network, the identification of traffic flows seems to be made with respect to various service usage activities, irrespective of the wireless networks on which these activities occur. ▪ features 1.6, 1.6.c Samsung furthermore successfully argues that the original application does not disclose that attempted data communications are identified and that a service policy is applied to such attempted data communications. Only actual communications are, according to Samsung, subject to application of a (the first) service policy. Indeed, against the background of the interpretation of feature 1.6b above, this feature lacks basis in the original application. UPC_CFI_54/2024 UPC_CFI_396/2024 43 Headwater relies on a wrong interpretation of the feature to find basis in the application as filed. Headwater takes the position that “attempted data communications” (over the first wireless access network and associated with the first service activity) are in fact communications which are attempted but blocked “at some point”. This would be illustrated by par. [00255] of SP1 because this paragraph indicates that some service usage activities are controlled or throttled. However, such a controlling/ throttling of service usage activities does not amount to blocking data communications (which can encompass a plurality of services). Headwater also refers to paras. [00364], [00365] and Figs. 38-40 of SP1 arguing that the firewall service policy implementation step in the upstream resp. downstream flow (illustrated in Fig. 8) would block the uplink respectively the downlink communication. However, for the skilled person this interpretation, which boils down to the application of a (the first) service policy to reduce data usage on a communication which is already blocked (feature 1.6.c) does not make technical sense. Even if disclosure were to be found in these passages of SP1, the skilled person would understand that the disclosure is limited to the context of blocking packets via a firewall (which can be realized by policy implementation agent 1690 in Fig. 16). However, this context is absent in the claimed subject matter, thereby adding technical information of that what was originally disclosed. There is therefore added subject-matter. Conclusion: added matter In conclusion, claim 1 contains added subject-matter. Several of its features are already not as such directly and unambiguously disclosed to the skilled person in the application as filed, let alone the claimed combination of features. The applicant has used various parts of seemingly unrelated embodiments to come to a claimed combination of features that is nowhere disclosed in the application, nor can it be deduced therefrom by the skilled person in a direct and unambiguous way. Absent this disclosure, there is an impermissible extension of subject matter. The foregoing conclusion applies a fortiori to claims 2, 5, 6, 10 and 35. These dependent claims only add features to the undisclosed combination of features of claim 1 and therefore suffer from at least the same added subject matter problems as claim 1. Given these circumstances, it is not necessary for the Court to assess the additional added matter objections raised against these subclaims. As the subject matter of claims 1, 2, 5, 6, 10 and 35 of the Patent extends beyond the content of the application as filed, the Patent is (in part) invalid. Auxiliary Requests Headwater has submitted a conditional application to amend the patent. In total, it has filed 30 auxiliary requests (ARs). Even disregarding the admissibility of some of the additional ARs submitted by Headwater after the original application to amend the patent was made, the admissibility of which is disputed by the parties and has not yet been definitively decided by the panel, none of the ARs can lead to a different conclusion. UPC_CFI_54/2024 UPC_CFI_396/2024 44 Of all auxiliary requests submitted, only AR17 has been submitted by Headwater to address the revocation ground of added matter. Nothing else has been argued by Headwater at the oral hearing. As the Court can base its decision only on what has been submitted by the parties (Art. 76(2) UPCA), the Court shall not of its own motion examine the ARs 1-16 or 18-30 in relation to added matter. In addition, at first glance, the Court does not see how ARs 1-16 or 18-30 could remedy the added matter deficiencies found in the granted claims. AR17 introduces vis-à-vis claim 1 as granted the additional feature: “wherein one or more traffic measurement points in a device communication stack can be used to assist in service control verification.” According to Headwater, the added feature causes the implementation of the first service policy to be verifiable, thereby resolving the lack of this feature which leads to an extension of subject matter for the claims as granted (see above). The Court does not follow Headwater in this defence. First of all, Headwater has not argued, and it cannot be seen that and why, the amendment proposed in AR17 would cure the extension of subject matter which is the result of claiming an undisclosed combination of features which is a reason for invalidity of the granted claims, independently of the “verifiability issue” (see the Court´s reasoning above). Furthermore, in the opinion of the LD Munich, the expression “…can be used to assist…” (underline by the Court) cannot, even leaving aside the clarity objections raised by Samsung, in a technically meaningful way be construed by the skilled person as limiting the claim to the original disclosure of a (non-optional) verification of the implementation of the first service policy (see above, e.g. original claim 1 on p. 230 of SP1). For these reasons, AR17 cannot serve as a basis to limit the Patent, which must accordingly be revoked, in part, to the extent of claims 1, 2, 5, 6, 10 and 35 as granted. 4. The infringement action The infringement action is unfounded, regardless of its admissibility. As the Patent is (partly) invalid, the infringement action, which was based on invalid claims 1, 2, 5, 6, 10 and 35 of the Patent, is without any merit. This is regardless of whether the infringement action is admissible – which has been challenged by Samsung on the basis of a lack of standing to sue. The action cannot succeed in any event because Headwater´s claims will have to be dismissed in view of the successful counterclaim for the reason that an invalid patent (claim) cannot be infringed. In view of this outcome, there is no need for the Court to decide on the admissibility of the infringement action or any of the other defences brought forward by Samsung against the infringement claim. UPC_CFI_54/2024 UPC_CFI_396/2024 45 5. Legal consequences Counterclaim From the above it follows that the Patent must be revoked because claims 1, 2, 5, 6, 10 and 35 are invalid due to an extension of subject matter. As the Court shall decide in accordance with the requests submitted by the parties and shall not award more than is requested (Art. 76(1) UPCA), and since Samsung has requested only the revocation of claims 1, 2, 5, 6, 10 and 35, the Patent shall be revoked in part, to the extent of claims 1, 2, 5, 6, 10, and 35. In view of this outcome, there is no need for the Court to address the other invalidity attacks raised by Samsung against the Patent. Infringement action The infringement action must be dismissed as unfounded. Remaining applications Given the outcome of the counterclaim action and the dismissal of the infringement action resulting from that, the parties no longer have any interest in a decision on the various procedural applications which cannot in any event lead to a different outcome of the case on the merits. Therefore, there is no need for the Court to decide on the various requests made under Rules 9, 263, 30.2 and 333 RoP which were heard at the occasion of the oral hearing. Leave to appeal this procedural decision is granted. Although this procedural decision may be subject to an appeal together with an appeal against the main decision (R. 220.2 RoP) there might be a need for leave to appeal for a party not appealing the main decision. Costs The value of the infringement action was set by the judge-rapporteur at € 2 million and the value of the counterclaim for revocation at € 3 million. Pursuant to Art. 69(1) UPCA in conjunction with R. 118.5 RoP, the Court shall decide on the obligation to bear costs. As follows from the above, in the counterclaim, Samsung, as the (counter)claimant, is to be regarded as the successful party. Therefore, Headwater, as the unsuccessful party, must bear the legal costs and other expenses incurred by Samsung. The foregoing applies mutatis mutandis to the infringement action. No reasons have been brought forward or are apparent to the Court as to why equity would require otherwise. Pursuant to item 2.4 of the DECISION OF THE ADMINISTRATIVE COMMITTEE OF 24 APRIL 2023 ON THE GUIDELINES FOR THE DETERMINATION OF COURT FEES AND THE CEILING OF RECOVERABLE COSTS OF THE SUCCESSFUL PARTY the value of the infringement action and UPC_CFI_54/2024 UPC_CFI_396/2024 46 the value of the revocation counterclaim pending before the same division should be added together for determining the level of recoverable costs. It this case the value of the infringement action has been set to 2 Mio. EUR and the value of the counterclaim for revocation to 3 Mio. EUR. The combined value is 5 Mio. EUR. The ceiling for recoverable costs for 5 Mio. EUR is 600.000 EUR. DECISION For all these reasons, after having heard the parties, Panel 1 of the Local Division Munich decides as follows: I. European patent 2 391 947 B1 is revoked in part to the extent of claims 1, 2, 5, 6, 10 and 35 with effect in the Federal Republic of Germany and the French Republic. II. The infringement action is dismissed. III. Headwater must bear the reasonable and proportionate legal costs and other expenses incurred by Samsung in the infringement action and the counterclaim for revocation. IV. All other requests are dismissed. Insofar leave to appeal is granted. Open workflows are closed. V. The additional oral hearing, which had been provisionally scheduled for 16 September 2025, is cancelled. INSTRUCTIONS TO THE REGISTRY A copy of this decision, once it has become final, is to be sent to the European Patent Office, the “Deutsches Patent- und Markenamt” and the “Institut National de la Propriété Industrielle”. INFORMATION ABOUT APPEAL An appeal against the present Decision may be lodged at the Court of Appeal, by any party which has been unsuccessful, in whole or in part, in its submissions, within two months of the date of its notification (Art. 73(1) UPCA, R. 220.1(a), 224.1(a) RoP). INFORMATION ABOUT ENFORCEMENT Art. 82 UPCA, Art. Art. 37(2) UPCS, R. 118.8, 158.2, 354, 355.4 RoP. An authentic copy of the enforceable decision will be issued by the Deputy-Registrar upon request of the enforcing party, R. 69 RegR. UPC_CFI_54/2024 UPC_CFI_396/2024 47 Read out in open court in Munich on 1 August 2025. Dr. Zigann Presiding Judge Kupecz Legally Qualified Judge Pichlmaier Legally Qualified Judge Augarde Technically Qualified Judge For the Deputy-Registrar UPC_CFI_54/2024 UPC_CFI_396/2024 48 DETAILS OF THE DECISION Order no. ORD_69436/2024 in ACTION NUMBER: ACT_7603/2024 UPC number: UPC_CFI_54/2024 Action type: Infringement Action Order no. ORD_69437/2024 in ACTION NUMBER: ACT_7603/2024 UPC number: UPC_CFI_396/2024 Action type: Infringement Action Order no. ORD_14251/2025 in ACTION NUMBER: ACT_7603/2024 UPC number: UPC_CFI_396/2024 Action type: Infringement Action Related proceeding no. Application No.: 13434/2025 Application Type: APPLICATION_ROP_333 Order no. ORD_14252/2025 in ACTION NUMBER: ACT_7603/2024 UPC number: UPC_CFI_54/2024 Action type: Infringement Action Related proceeding no. Application No.: 13435/2025 Application Type: APPLICATION_ROP_333 Order no. ORD_14253/2025 in ACTION NUMBER: ACT_7603/2024 UPC number: UPC_CFI_54/2024 Action type: Infringement Action Related proceeding no. Application No.: 13925/2025 Application Type: Application for leave to change claim or amend case/pleading (RoP263 Order no. ORD_14254/2025 in ACTION NUMBER: ACT_7603/2024 UPC number: UPC_CFI_396/2024 Action type: Infringement Action Related proceeding no. Application No.: 13924/2025 Application Type: Generic procedural Application Order no. ORD_45237/2024 in ACTION NUMBER: ACT_7603/2024 UPC number: UPC_CFI_54/2024 Action type: Infringement Action Related proceeding no. Application No.: 40273/2024 Application Type: Generic procedural Application Order no. ORD_45284/2024 in ACTION NUMBER: ACT_7603/2024 UPC number: UPC_CFI_54/2024 Action type: Infringement Action Related proceeding no. Application No.: 40279/2024 Application Type: Generic procedural Application UPC_CFI_54/2024 UPC_CFI_396/2024 49 Order no. ORD_45282/2024 in ACTION NUMBER: ACT_7603/2024 UPC number: UPC_CFI_54/2024 Action type: Infringement Action Related proceeding no. Application No.: 40277/2024 Application Type: Generic procedural Application Order no. ORD_45283/2024 in ACTION NUMBER: ACT_7603/2024 UPC number: UPC_CFI_54/2024 Action type: Infringement Action Related proceeding no. Application No.: 40278/2024 Application Type: Generic procedural Application Order no. ORD_45270/2024 in ACTION NUMBER: ACT_7603/2024 UPC number: UPC_CFI_54/2024 Action type: Infringement Action Related proceeding no. Application No.: 40281/2024 Application Type: Generic procedural Application Order no. ORD_45243/2024 in ACTION NUMBER: ACT_7603/2024 UPC number: UPC_CFI_54/2024 Action type: Infringement Action Related proceeding no. Application No.: 40272/2024 Application Type: Generic procedural Application Order no. ORD_45271/2024 in ACTION NUMBER: ACT_7603/2024 UPC number: UPC_CFI_54/2024 Action type: Infringement Action Related proceeding no. Application No.: 40282/2024 Application Type: Generic procedural Application Order no. ORD_33902/2025 in ACTION NUMBER: ACT_7603/2024 UPC number: UPC_CFI_54/2024 Action type: Infringement Action Related proceeding no. Application No.: 21048/2025 Application Type: Generic procedural Application

Key Holdings

• Claims revoked for added matter.
• Added matter test aligns with EPO case law.
• 30 auxiliary requests failed to cure defects.
• Infringement dismissed due to invalidity.

Tags

• Added Matter
• Auxiliary Requests
• Infringement
• Revocation

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