UPC CFl 492/2024 – Hybridgenerator ApS v. HGSystem ApS et al.

Expert Commentary

Full Decision Text

1 Copenhagen - Local Division UPC CFl 492/2024 ACT 47484/2024 ORD 59411/2024 Order Delivered by the Local Division of the Unified Patent Court, Copenhagen on 19 December 2024 concerning EP 4 238 202 B1 The ruling concerns European patent no. 4 238 202 B1 and relates to whether the court's ex parte order for the preservation of evidence of 26 August 2024 should be confirmed or revoked in whole or in part pursuant to Article 60(6) of the UPC Agreement. Headnotes Keywords Props: HGSystem ApS (Attorney Allan Christensen and European Patent Agent Jacob Karstad Meyland) HGSystem Holding ApS (Attorney Allan Christensen and European Patent Agent Jacob Karstad Meyland) Infotech Concept ApS (Attorney Allan Christensen and European Patent Agent Jacob Karstad Meyland) Infotech Holding ApS (Attorney Allan Christensen and European Patent Agent Jacob Karstad Meyland)2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 2 (Attorney Allan Christensen and European Patent Agent Jacob Meyland) (collectively "rekvisiti") Requester: Hybridgenerator ApS Nørrevang 15 Nørre Lyndelse 5792 Årslev, Denmark (Attorney Mikkel Kleis and patent agent Lasse Rosenlund Lauridsen) The disputed patent European patent no. 4 238 202 B1 Referee The order was made by a single judge, President Peter Agergaard, pursuant to Rule 194(3) of the Rules of Procedure. Language of the language Danish Subject of the case In accordance with the petitioner's request of 16 August 2024, the local division in Copenhagen issued an ex parte evidence preservation order on 26 August 2024. The court order was enforced by the Bailiff Court in Svendborg, Denmark, on 30 August 2024. On 30 September 2024, Rekvisiti requested a review of the order pursuant to Rule 197(3) of the Rules of Procedure. Due to problems with the provision of passwords etc., the report for the investigation by the Court's independent IT expert could not be finalised until after the petitioner requested a review of the order. Against this background, the report was not handed over before the main hearing on the question of reconsideration of the order. In connection with the request for reconsideration, new documents have been submitted, including written witness statements, and the parties have submitted new pleadings. Date of main hearing In agreement the parties, the court initially set the date for the main hearing for 31 October 2024 at 09.30- 15.30.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 3 At the request of the petitioner, the main hearing was subsequently rescheduled for 28 November 2024. Accordingly, a meeting was organised at the local branch in Copenhagen main hearing on 28 November 2024 pursuant to Rule 197(4) of the Rules of Procedure, where the Court announced that the order would be delivered on 19 December 2024 at 10 am. Claims Rekvisiti makes the following claims: Pursuant to Article 60(6) of the UPC Agreement and Rule 197(4) of the Rules of Procedure, the appellant requests that the order of the Court of 16 August 2024 be set aside pursuant to Article 60(1) and (2) of the UPC Agreement and Rule 196 of the Rules of Procedure, 1) cancelled in principle, 2) in the alternative, amend in accordance with following. In addition, pursuant to the last sentence of Rule 197(4) of the Rules of Procedure, the applicant requests that the court obliges persons who have learnt confidential information to keep this information confidential and to impose penalties for non-compliance. The applicant submits the following claims: In principle, the court's order of 26 August 2024 is upheld. In the alternative, the court's order of 26 August 2024 may be modified to a certain .2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 4 Written witness statement dated 29 October 2024 from Written witness statements I: Confirm that down ride statement is sarid and korrek4. This memorandum has been prepared in the pending case between H5-Łridgenerator ApS ("Case- sn- per") on the one side rig HGRzteœ ApS, HG£iutern Holding ApS, InÏõtech Mncept Opt, Infò- tech Holding 5 and on the other (collectively ".5a j;te"}, herein after in case LLC ITT i Pernon backgrounds I am currently in the process of becoming the CEO of which provides 5tridsprc'duk- tems, and I have previously been CEO of Sagsoger, The concept -.fitridsprcduL:Iiлтie" henimes i deaлe eràøærtog saœlet oæ HGȘş-steœs hș-br °eaazta- rer îalôet 3dI'Ütooo, lîPÜzooo at thoo o: iÂet de all three for sa x1át gngac Âe elœœoter zź draт I i EP ą o$8 now BI (-fÎtrirLлpatentt-t"). which describes c's nedc nfor. or op&jgy-t ng works gá zn 8agsogersú>rlü&ringaflosoùogeolStńdspatemteł I find that the Defendant has stated that it is the Defendant's opinion that the pzx'dukfier in this , including the Defendant's previous product, contains: In addition, I understand that the problems such a solution would cause is that 5agsoger/or äet "nder has system that the problems such a solution would cause is: [Sagsogeгs egeтi fiemliœ e]se]2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 5 In other words, I am of the opinion that what is special about the case is that there is no James roro tg In 'etheræt fzz '"ztteri& æen aJtsz zldæ dirÅåte from æo- torEn,-'°eoeraLorea. Stzi'isproducers Inn erer Le strc i mia battery Stridspro lztezzie ffiogerez de paden Ide, soæ Szgso-æ fzenTlzæ-er above. In Sir.dspzoduL1eme Tetæres stzora to iax'ezterea Sole *a battery and Oz motory'@eneratoz+o. The 5iridsprcd-lerxie is set up so that a combustion engine drives a 5iustronis generator (DC). This generator often supplies a common geanezngieade DC-'aus. Battery series are also connected to this DC bus. Therefore, there is a direct connection between the power supply and the insmterezi. It 0eh,fier, ai motor szs'el u-ider normfi load and uzider peak loadzztog sarnb gt k° laere tight t:iJ bade rlslri na- ' de' t1" inY rrtcrcn "g iJ apladzfiog Æ batteries. The e]ek ibr0inalisations can be more precisely i1)ustrated by this pre-[nip]ed p-i.-.eip diagram: Precisely sHxæ deane CiC-lioblizig is, soen apgii-et over.year, teluiically 'ren this year all 3triåspro- duL-terne. Home: e:Stridsproduktertie il&e general* ideatisJie, for example 1:+nittes & e I have read the 3-day court order of today's date, including the account under section Ci with photographs'. I confirm that the court-orelsezi is a hnrrekfi reciprocal ai. hi-o:ledes - pzod the cows ftmgerer.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 6 Appe ndix 66 Patradś Written acknowledgement of i Hybńdgenerator ApS Background information Yours truly, m in Hybridgenerator ApS. I have previously been W m m I Cantox ApS, which specialises in providing IT systems and services. I have therefore been involved in HendsXab lil hybrid generators and especially in the management of systems hope th Hybrldgenerator Ap5 and the lilkriytled companies I have revisited one of my favourite an -odn'ng Off 5ikrİrjg ît1 b ryismaleriaie and inspect that øjandom ag Can bokræhe, al dœi deri anfona sagsframsfilling is korrekl. Old borivlsnlngefl aT 0g i fO/bsr'd I69 Ined the 0lierf0lgend0 :siIale O'zI Ø I Hybridgenwalor ApS warrants 5 exemplar9r EII Hybridganarator ApS' hybrid generator, which 1ahnically functions as described in claim 1 of European patent no. 423820a. Commentator for witness statement I have read the witness statement (Exhibit U} s-arnt reviewed all the other evidence in the case, including §hIagQ- T, which allegedly shows an example of one of the hybrid penerators that dies or is the subject of the case (banævn1 slridsprodukteme). That is my clear judgement that it cannot be easy to explain in the following. According to the chemical compounds in the warfare products are as shown in the following table, which shows that the SySlOfŁØl had0f1 g0Üf1emgáerioe bus lil which the generalor is noble direkle tîl batte net and inverter. Appendix 66: Written witness statement dated 8 November 2024 from2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 7 Page 2 al 5 However, this assumption does not mean that the combat products are not recognised by and HGSystem ApS as being significantly more enerq ieflexive than H/brldgene alor ApS' hy&idgeneralo er. F.Vs. ariferer in E Over Fyn HR. 10 2023 (appendix 39) that his hybrid generator "'will be more autonomous, up to 20% better fuel economy than the old one'" The above solution implies a higher level of complexity compared to Hybridpeneaior ApS' patented loading where the load motor only loads the paths and the inverter only receives power from paths. IUed HyDidgerisrator ApS' patented solution has disconnected the combustion engine from the load so that it is only connected to the furnace. This enables the combustion engine to be driven more efficiently than the furnace solution. In the above example, the lorry engine is switched off and thus the iMfO on 6BITtM0 fYiädo driV06 in the most effective way. In addition, they also present oel b ag 0 and R rest ekse plar Qt En hyb dge e ato ernst 'Ie ul The lazy man. The first picture in appendix Q and R shows a not yet built hybrid generator, where you can see that there are two large openings that still need to be covered. In comparison, Flag 13 shows a completed axle section of the axle assembly of the stiidsprcducts. In the last picture on the left and right you can see a hedge of trees with many leaves. The trees must therefore have been taken in autumn, rather than when the proofing was installed. If the hybrid generBtOren is not completed, it must be concluded that the machine is the cons[roere1elle proofing. Trees/igs leaves are mainly coloured and the raster endos are orange Hekk+n rriangler btade and In addition, the leaves are orange. Yda esw and eIekt'onikkasæ is missing Media clips from i1 13:2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 8 It bemmkes aı 6ide 7 bilâBo And it has an orange colour here. This is why you can see gravel on this image. On page 6 of appendix 0 you can also see gravel and that T-e1emanI, which is similar to the T-element on page 7. It is therefore true that the links on page 6 and e ıagw on the same page. Haakker 6 Ola de er Oraflge. T-elememem İ T-element Page 72024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 9 Sido 9 al 9 Image! shown p8 spoon d in bJlug Q v looks like a later step in the collection a[ product Shared However, the pictures show a shrub against green leaves and therefore there must be no such thing as "a .'lor year. Dei e likewise. unlikely. that HGs/s'ein ApS vll let a hybrid genera[or beat u1ærdig. as shown on page T , until the autumn, when the share Iorbunde\ to make I tbrldge e a'o a /e dg will be minimal. In the best picture f page g in b'layer Q) the hyDi ogeneralo e ht\iel lorh0ld hi Page8 8. as the hybrid genera1or is standing on a floor. It is not possible to date the image shown on page 9. but there is no reason to IrO 61 dg1 e the same N as"ine as =s\ @ page 8. '"Wood saddles and a gF0fl Heel. ' As it takes approximately one week to move a hybrid generator from the image on page 8 of Appendix Q to the image on page 1 of Appendix Q, Appendix O and R contain images of two different Page e al 9 Gravel2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 10hyb idge eralo modeeer, Iwo al lremsiillingen al one of ceIlr lorekommer at we skei ełter sagana anlæg. Farie,2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 11 Œ Annex V: Written witness statement dated 15 November 2024 from shdkJla vkfnaarkzurfrts vedrarende nsasJdnen 'hMystem "aP'J3o00'. I, rr trained by HGSysæm ApS, to uAvIkIe, draw, con5lxueæ and d0kum¢n\ers maaFinømc in the MPU (MobilP Prrxier Units), which 'nddI further consist r uru'0-0, MPUZ@ I 's MPU3000. I hour a is keltmaautsvirk5rmlrKd, Avre' j¢8 I isi miss arbzjdstraft out to companies that need help within nlaskinprcdukti0m. Mad mln training for machine users and J"/ z wr irø indrn for meåkiaudV?kl irig o§ mart:iaprodukåon I have contributed to the development of the machines. d4c prpduotves vgd I¥Gsv6Lem Aps, I have been business for 7 years, primarily working for £øblnplant A/S. Hybri ener4tor ApS, HGSys em ApElåg eigeleb9ndo East mir*dæ tasks get fkre other "Aksnmbg-04v. For so ilde aggJr the connection between rriotor/DC geru-rator. ba te" and in-wia-, :d turgecer the three products MPU100d, MPLf2€€O and MPUSOOOelter hamnx' principle. Thus, it is a real fofg.Indel se fr4 moic-/DC e--n0t-- ja to bo btJ"w II sz-el aa le i r-m I¥ryzI*irf. rn I lMst ui f, 'IY"r'edes MP U3ao0 rM I e w, lt ude also show how the peru tm t MPU2000 down. Out-'!d'-g3a-beidM with MIPU8 bIeu 4ta'\¢t Op in November Z€iZ3 and /odgb indtll ma] JD24, where the fe/s\e exercise Apr tozype) e! met*irIeJt was Idar dl startup and testing. Selue sam|In8an of pr04xztypen bev commenced in eprll 2d24 and the £JfW May 2074, we have worked with other products in the business. There have been 1,000 metric changes on MPU3000 since May I am aware that d4r is gzDujdet p4 styni sofMae, motard talpr sgmt j4g kar 0 rct tesrkgrsei of maski new after m4j Zq24. **+*+!+9! p6 MPU3000 is relatively spacious, and it is therefore possible within our framework to produce larger products such as a larger battery with a large number of inverter modules. oezte ger 4ei mviigt to ggB ekSeFf1[MhJlS f0duk¥Cl pog§ l0ad eden, all the general setup, fwrundzr Fwblrafe4sen between moror/OE generor, DC busbar. barc"i nvezler, andrew C E P2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 12 I can tell you on my word of honour that rlei i£ te has been performing principle meKanical development Dg OlTlbyggi ng on the machine MPU 3ÆO since 3d August ZO24. Dclense d.*5/L1-2U242024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 13 The parties' pleadings Rekvisiti's pleading of 30 September 2024: "... D SUPPLEMENTARY STATEMENT OF FACTS AND PLEAS 1 About the evidence provided by Hybridgenerator 1.1 Activities related to the Norwegian company Hybridgenerator has submitted a large number of documents with the request for evidence. A very Many of the attachments are transcripts of posts on Facebook and LinkedIn. Common to a large number of the attachments is that they have no relevance to the circumstances of this case. The appendices include actions in Norway. had one for Norway in particular specific agreement that he could run a competing business with Hybridgenerator after the termination of their cooperation. As stated in Hybridgenerator's own statement of case, this was done, among other things, by Hybridgenerator and entering into an agreement that Hybridgenerator's Norwegian company ('Hybridgenerator AS' which has now changed its name to 'HGSystem AS'). The Norwegian company is not involved in this case. However, the vast majority of the social media transcripts presented are related to the Norwegian company. For this reason, the Court is asked to disregard these documents. It is also noted that EP 4 238 202 B1 (the "Contested Patent") has not been validated in Norway and that the Contested Patent thus - notwithstanding the comments below where it is claimed that the Contested Patent is not valid and that the Contested Products do not exhibit all claim elements of claim 1 of the Contested Patent - does not limitations on requisition in relation to acts etc. in Norway. Nor does the Court have any jurisdiction to assess offences committed in Norway. 1.2 Attempts to discredit Furthermore, several of the appendices have the sole purpose of misrepresenting/discrediting One example is Appendix 37, which is a Facebook post with a video showing a shredder. has posted the video with the text: "Office work again, here is my number one favourite office machine. It gets something out of your hands." followed by a smiley face. In the comments section, one person has written: "delete all traces" followed by a smiley face. In the appendix, it is anonymised who wrote the comment, which gives the impression that it was itself, which is not the case. the case. This is not clarified in the request for evidence either, the fact that Hybridgenerator has actively deleted the information that it is not who wrote the comment. The attachment can therefore only have one purpose, namely to discredit , which the court is asked to disregard.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 14 1.3 Hybrid generator requirements matrix Moreover, the numerous appendices do not anywhere show the presence of all claim elements of claim 1 of the Disputed Patent. The appendices consist of numerous examples of HGSystem selling hybrid generators, but no evidence that each of the Disputed Products (MPU 1000, MPU 2000 and MPU 3000) exhibits all claim elements. The only evidence that has been attempted to support Hybridgenerator's claim of infringement is thus the claim matrix included in the request on pages 13-15. It is noted that the claim matrix is Hybrid Generator's own party submission and not a real proof of infringement. As will be shown below, the claim matrix contains a number of errors, and it does not account for the fact that all claim elements are exhibited by all The Combat Products. The requirement matrix only randomly refers to four 'references' as "documentation" that all requirement elements should be exhibited by the Combat Products. Three of the four references are social media posts. Of these three, two do not state that they relate to the Conflict Products, and the last of the three concerns only one of the Strid products - the MPU 1000 series model. For one of the elements, the requirements matrix states that the traction is present in the Combat Products (i.e. MPU 1000, MPU 2000 and MPU 3000), but the description states that according to reference 2, "24 kVA AC out" is supplied, and that MPU 1000 supplies 24 kVA AC power. Reference 2 thus only refers to the MPU 1000, and no attempt has even been made to prove how this applies to the other Contested Products. Furthermore, several elements in the requirements matrix are based on Hybridgenerator's pure speculation. Among other things, it can be emphasised that formulations such as 'it is highly probable' are used, whether the description of the presence of a requirement element, as another solution would be 'complicated' according to Hybrid Generator. Another argument in the requirements matrix is based on the fact that Based on this, Hybridgenerator concludes that it is 'highly likely' that the solution has been adopted by new companies. Without concrete evidence for this conclusion, it might have been more obvious to conclude that is familiar with the solution in the patent in suit, and therefore has had every opportunity ability develop a solution that does not fall within the scope of protection of the patent in suit. It is noted that Hybridgenerator has the burden of proving that the Contested Patent has been infringed or will be infringed and that in support thereof, cf. Article 60(1) of the UPC Agreementa reasonable available evidence. In the light of the above, it can already be concluded that no evidence of infringement has been and, for that reason alone, the Court's order of 16 August 2024, made pursuant to Article 60(1) and (2) of the UPC Agreement and Rule 196 of the Rules of Procedure, must be set aside, see Article 60(6) of the UPC Agreement and Rule 197(4) of the Rules of Procedure. 2 Priority of the patent in suit The patent in suit was granted on 14 August 2024. The patent in suit was filed on 28 October 2021 with application number 21802306.7 (the "Patent Application") and claims priority from the European patent application 20204351 (the "Priority Application") filed on 28 October 2020. In connection with the filing of the Patent Application, a number of changes were made to the application text, whereby this added content has an effective filing date on the2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 15 filing date of 28 October 2021, while the content found in the Priority Application has a effective filing date on the priority date 28 October 2020 (split priority). This means publications in the period from 28 October 2020 until 28 October 2021 may be relevant for the assessment of the validity of the patent in suit. However, for the sake of simplicity, the following only focuses on publicly available knowledge before the priority date 28 October 2020, however, rekvisiti expressly reserves the right to rely at a later date on publications during the period 28 October 2020 and until 28 October 2021 in support of its plea that the Contested Patent is not valid. 3 No presumption of validity The fact that at the time Hybrid Generator commenced the present proceedings on 16 August 2024, there was no had been filed against the patent at the EPO cannot be used as an indication of validity, partly because a lack of opposition can never be equated with an acknowledgement of validity, but also because the patent in suit was issued only two days earlier and the opposition period does not expire until 14 May 2025. 4 The patent in suit is invalid 4.1 The patent in suit does not fulfil the novelty requirement according to Articles 52(1) and 54(2) EPC As will become clear in the following, the patent in suit is granted with a scope that includes Hybrid Generator's own products which have been sold and marketed, including mentioned and described publicly, prior to the filing date of the Priority Application on 28 October 2020. The patent in suit is therefore invalid as it does not fulfil the requirement of novelty, cf. articles 52(1) and 54(2) EPC. The following are Exhibits A1-D1, all of which show publicly available information from before the priority date of the Contested Patent, 28 October 2020. Appendices A1 and A2 are transcripts of http://hybridgenerator.dk/ in 2016, from which it appears from Appendix A1 that in April 2016 they offered "Hybrid Generator Systems", which among other things explains: "In our hybrid generators, the diesel engine is always kept inside ideal running conditions at 50 to 95% of its power rating." At that time, Hybridgenerator was operated by Infotech Concept ApS, which was registered as Hybridgenerator ApS on 18 May 2015. Appendices B1-B3 are printouts of the applicant's website https://hybridgenerator.eu/ to the address http://hybridgenerator.dk/ (as mentioned in Appendices A1 and A2) refers to today. Appendix B1 shows a picture of a hybrid generator dated 9 August 2020 and also describes it: "We are innovative and dedicated and have had only one focus from the start. Our materials, chassis and design - from day one everything has been created for one purpose: to build the world's best mobile hybrid generator!"2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 16 and further that the benefits of Hybrid Generator's products include "Far better power quality, as our engine operates at the same load constantly. Where other hybrid solutions often only deal with off-peak and low load periods, our products handle everything from the hybrid module". Appendix B2 states that it is an "LTO battery system" and under "Operation modes" It states that "Load is isolated from motor. Perfect sinus power, as the grid." It also states that is a trailer-based solution: "Trailer based solution offers ease of on-site logistics, removing the requirement for lifting equipment". Appendix C1 concerns a YouTube video from an online conference ("3rd International Conference on Small and Medium Wind Energy") on 27-30 April 2020 where Hybrid Generator, presents Hybrid Generator's hybrid generators and their use in the wind turbine industry. As shown in Appendix C2, the video was published on YouTube on 4 June 2020. In the video in Appendix C1 explains that conventional hybrid generators at the were based on a diesel generator to handle the varying load. Conversely, the The client turned the concept on its head and instead looked at how the battery can be dimensioned handle peak loads, etc. and based on what size motor was needed to recharge the battery at nominal load (see 04:00-05:00). Furthermore, (see 11:20-11:40) explains in the video that, especially for weight reasons, a motor should be dimensioned significantly lower (e.g. only one third) than what it should be to handle peak loads, and that it should only cover the nominal load. The rest is handled by the batteries, which act as a buffer. In the video, (see 11:55-12:05) summarises that the motor is therefore isolated from the load and the motor is used solely to charge the battery. The is also emphasised later in the video (see 15:30-15:40) that the hybrid generator uses a separate charging system and a separate inverter running all the time, resulting in a very grid-like output. In the video, there is also information that a 1500 rpm engine is required (see 11:45-11:55), that the chassis is made of plastic (16:50-17:30), and that a Lithium Titanate (LTO) battery is used (see 20:20-21:00). There are also several pictures of the hybrid generator mentioned (e.g. 08:20-08:40 and 18:35-18:40) and mention that the hybrid generator is mobile (see 05:40-05:50). Appendix D1 is an article from the company Victron Energy, which reports on Hybrid Generator's use of Victron inverters for hybrid generators. It is described in the article, among other things: "The result is a range of sophisticated Hybrid Generators that flips things on their head - by using inverter power as the primary high power source, together with a smaller supplementary diesel generator. In fact, in many units inverter power is all that is required."2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 17 As can be seen from the above review of appendices A1-D1, Hybridgenerator's own hybrid generators prior to the priority date publicly disclosed to have the same characteristics as the invention in the Disputed Patent, in particular that the diesel generator always runs at optimal operation (see Appendix A1: "In our hybrid generators, the diesel engine is always kept inside ideal running conditions" and Appendix B1: "Far better power quality, as our engine operates at the same load constantly."). Below is a table showing, in the same way as stated by Hybridgenerator in its statement of case (see the request for evidence on pages 14-16), that Hybridgenerator's own products before 28 October 2020 exhibit all features of claim 1 of the patent in suit (the claim matrix is also presented as Appendix E). Features in claim 1 of the patent in suit Hybrid Generator's own publication prior to the The priority date of the patent in suit is 28 October 2020 A mobile hybrid generator system for providing grid-like AC power output to a load at off- grid locations, See for example Appendix C1 at 5:40-5:50 (the hybrid generator is mobile) and 15:30-15:40 (grid-like output). Both at 12:40-12:50 and at 20:00-20:10 it is also clear that this is an AC output. Furthermore, as mentioned by Hybridgenerator under the same point in the request for evidence on page 13: "A network-like AC output is technically necessary for the hybrid generator system to power all standard electrical devices, as electrical devices are designed for specific AC outputs." the hybrid generator system comprising a housing accommodating: For example, see images in Appendix B1 and in Appendix C1 between 08:20-08:40 and 18:35-18:40, from which it is clear that the system has a house. - a rechargeable electrical energy storage unit, such as a battery,configured to provide a DC poweroutput, In Appendix C1, for example at 20:20-21:00, it is mentioned that a Lithium Titanate (LTO) battery is used. Using the LTO battery is also described in Appendix B2. - at least a first primary energysource, such as a combustion engine, for charging the rechargeable energy storage unit, and In Appendix C1, at 11:45-12:05, it says that the engine preferably be of a type that runs 1500 rpm and that the engine is isolated from the load and only charges the battery. - an inverter unit configured forconverting the DC power outputfrom the rechargeable energystorage unit to the grid- like ACpower output, In Appendix C1, at 04:20-05:00, it is explained that the hybrid generator has an inverter that supplies the required output and that the battery is dimensioned support the inverter's consumption. It is thus clear that the inverter converts DC power from the battery to the output. It is also mentioned at 12:20- 12:30 that a inverter of the Victron brand.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 18 wherein the mobile hybrid generator is configured such that 1) the grid-like AC power output is provided only from the rechargeable energy storage unit via the inverter unit, and According to Appendix C1, at 15:30-15:55, and according to Appendix B2, a very grid-like output is delivered exclusively from the inverter, which is separated from the charging system and isolated from the motor. Thus, the inverter must draw the power from the battery and the grid-like output will be supplied exclusively from the battery via the inverter. Hybridgenerator also writes under the same point in the request for evidence on page 13: "[...] that an alternative where the diesel engine also contributes to the network-like alternating current would require the diesel engine to operate at a correct speed AND in phase with the inverter. This would not only be a complicated solution, but it would also lower the efficiency of the diesel engine against the desired from HGsystems." Similarly, this is clearly against the wishes of Hybridgenerator itself at the time (see e.g. Appendix B1), and this opinion documents that the trait is found in Hybrid Generator's products as shown in Appendix B1, B2 and C1. However, as will be explained below, the situation is different for the Combat Products, which do not exhibit this trait. 2) the output from the primary energy source is only used to charge the rechargeable energy storage unit, This is explicitly mentioned in Appendix C1, at 11:55-12:05, and also clear from Appendix B2, which mentions that the output is isolated from the motor. both during normal mode operation, having normal mode power requirements, and during peak power operation, having peak power requirements, It is clear from Appendix C1 that the above applies to both peak power and nominal load. Peak power is, at 7:30- 7:40, mentioned to be around 180 kW for a couple of hours. seconds, while the rated load, at 11:20-11:35, is mentioned to be significantly lower and that the motor only needs to be big enough to handle the rated load. These therefore correspond to peak power operation and normal mode operation respectively. the mobile hybrid generator system characterised in that the atleast first primary energy sourceis dimensioned to the normal mode power In Appendix C1, at 11:20-11:35, it specifically mentions that the motor is sized to cover only the rated load to save weight and that the motor can be one third the size of what it might otherwise be.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 19 requirements, i.e.much smaller than for the peakpower requirements. 4.2 Invalidity summary (lack of novelty) As stated above, claim 1 of the patent in suit does not fulfil the conditions for novelty, cf. Articles 52(1) and 54(2) EPC. Therefore, the patent in suit cannot be considered valid and therefore cannot form the basis for the evidence preservation order. Alternatively, it entails at least that the presumption of validity has been weakened to such an extent that the Contested Patent cannot form the basis of the evidence. For those reasons, the Court's order of 16 August 2024 made pursuant Article 60(1) and (2) of the UPC Agreement and Rule 196 of the Rules of Procedure must be set aside, cf. Article 60(6) of the UPC Agreement and Rule 197(4) of the Rules of Procedure. In its statement of case, Hybridgenerator states that the features in subclaim 5 (fuel tank and combustion engine), subclaim 6 (LTO battery), subclaim 7 (solar cells) and subclaim 13 (the hybrid system is mounted on a trailer) are also assumed to be exhibited by the Contested Products. Hybrid Generator relies solely on claim 1 in support of its request, and it is therefore merely noted that these features are also known from Hybrid Generator's own products already before the priority date (see Appendix A1-D1). As Appendices A1-D1 all refer to Hybridgenerator's own products and own publications prior to priority date, Hybridgenerator has been - or should have been - aware that with this information the validity of the Contested Patent would be questioned. As the court has at the same time been asked to make a decision on interim measures without prior hearing of the respondent (ex ), cf. Rule 197(1) of the Rules of Procedure, and thus without the respondent being given a chance to clarify this to the court prior to order, Hybridgenerator should have informed the court of its own disclosures prior to the the priority date and have clarified the validity of the Contested Patent in light , cf. Rule 192(3) of the Rules of Procedure. Hybridgenerator has thus not fulfilled its obligation under Rule 192(3) to provide all material known to Hybridgenerator that could have an impact on the court's decision. 5 The disputed products do not infringe claim 1 of the disputed patent Claim 1 of the patent has the following content: 1. "A mobile hybrid generator system for providing grid-like AC power output to a load at off-grid locations, the hybrid generator system comprising a housing accommodating: - a rechargeable electrical energy storage unit, such as a battery, configured to provide a DC power output, - at least a first primary energy source, such as a combustion engine, for charging the rechargeable energy storage unit, and - an inverter unit configured for converting the DC power output from the rechargeable energy storage unit to the grid-like AC power output,2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 20wherein the mobile hybrid generator is configured such that 1) the grid-like AC power output is provided only from the rechargeable energy storage unit via the inverter unit, and 2) the output from the primary energy source is only used to charge the rechargeable energy storage unit, both during normal mode operation, having normal mode power requirements, and during peak power operation, having peak power requirements, the mobile hybrid generator system characterised in that the at least first primary energy source is dimensioned to the normal mode power requirements, i.e. much smaller than for the peak power requirements." In Hybrid Generator's statement of case, it is referred to that the Contested Products, based on allegedly being able to deliver a 24 kVA AC output and having a 'Stage V Cat' motor for charging, should fulfil the conditions: 1) "the grid-like AC power output is provided only from the rechargeable energy storage unit via the inverter unit, and 2) the output from the primary energy source is only used to charge the rechargeable energy storage unit, both during normal mode operation, having normal mode power requirements, and during peak power operation, having peak power requirements," However, this is not a correct assumption by Hybridgenerator. The dispute products do not fulfil these conditions in claim 1 of the patent. In particular, it is important to note that requirement 1 specifies that: 1) "the grid-like AC power output is provided only from the rechargeable energy storage unit via the inverter unit" [my emphasis] and that 2) "the output from the primary energy source is only used to charge the rechargeable energy storage unit" [my emphasis]. Furthermore, it is specifically stated that these two conditions must be met for both a) 'normal mode operation' and by b) 'peak power operation'.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 21 It also appears from the description in the patent in suit, cf. Appendix 6, under 'Summary' on page 2, under paragraph [0009] in the right-hand column, line 51, that: "A key feature is that the presently mobile hybrid generator system preferably is configured and dimensioned such that the AC power output is provided only from the inverter unit, both during normal mode operation and during peak power operation, i.e. pure inverter based operation can be provided at all times. I.e. the presently mobile hybrid generator system is preferably configured and dimensioned such that the AC power output is provided only from the rechargeable energy storage unit via the inverter unit, both during normal mode operation and during peak power operation." [Emphasis not added, but appears in the quote]. It further states under section [0012] on page 3, left column, line 29 that: "[0012] The present inventor has realized that with pure inverter based operation the power factor issue, usually associated with generators, is much less of an issue, i.e. by dimensioning the inverter unit of the presently disclosed hybrid generator system for the peak load requirements, much can be gained. In that regard it is noted that a 90 kVA inverter unit can provide a power output of 180 kW for a few seconds with a suitable dimensioned battery. With the inverter unit in itself being able to handle the peak power requirement, and if an engine is used as the primary energy source, the engine can be dimensioned for the normal mode operation, i.e. a much smaller and engine is required and the engine can be operated only temporarily such that fuel efficiency and engine efficiency can be optimised. Under typical loading conditions the load can be provided from the rechargeable energy source, and as the engine is only used for charging the rechargeable energy source, operation of the engine can be reduced to a few hours per day - which should be compared to close to 24 hour engine operation, even with state of the art hybrid generator systems." [my emphasis]. From the description in the Contested Patent, cf. Appendix 6, under the item 'Detailed description' on page 3, under section [0014] in the right-hand column, start line 20, it appears that: "[0014] The presently disclosed hybrid generator system is preferably configured such that output from the primary energy source is only used to charge the rechargeable energy storage unit - in that case the output from the primary energy source cannot be used for the load. I.e. typically there is no direct connection between the primary energy source and the inverter unit, in that case they are only connected through the rechargeable energy storage unit." [my emphasis]. It further states under section [0022] on page 4, right column, line 5 that: "[0022] A major advantage of decoupling the primary energy source from the load, is that the primary energy source can be operated completely independently, e.g. in terms of AC power frequency. AC power output is usually provided at around 50 Hz. If the engine+ generator is connected to the load, 50 Hz requires an engine speed of around 1500 RPM with a four pole generator. But a typical diesel engine does not operate efficiently at 1500 RPM. The primary energy source of the presently disclosed hybrid generator can be operated independently of the load, such that in case of a primary AC power source,2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 22 the frequency of the AC power output from the primary energy source can be different than the frequency require of the AC load." However, the inverters are designed so that an internal combustion engine drives a direct current (DC) generator. The DC current from the DC generator supplied by the combustion engine is used by the inverter to provide an AC output (alternating current and grid-like output) if the hybrid generator is loaded, and to charge the batteries in cases where the load is less than the output from the DC generator. This means that at maximum load of the hybrid alternator, all power generated by the combustion engine is used by the inverter to provide an AC output (alternating current or grid-like output) at the same time as additional power is drawn from the batteries. This means that in this case, the combustion engine supplies power that is not used to charge the batteries and the grid-like output is partially supplied by the combustion engine. With little or no load on the hybrid generator, the excess power generated by the combustion engine is used to charge the batteries. This means that in this case, the combustion engine supplies power that is partially not used to charge the batteries and the grid- like output is supplied by the combustion engine. It is therefore clear that the Conflict Products do not fulfil the condition that the grid-like output only becomes delivered from the rechargeable energy storage unit, i.e. the batteries. This is neither the case at maximum load nor at medium load. It is also clear that the Combat Products do not fulfil the condition that the output from 'the primary energy source', i.e. the combustion engine, is only used charge 'the rechargeable energy storage unit', i.e. the batteries. Hybridgenerator writes in its case presentation (page 14): "It is highly likely that the grid-like AC power is only supplied by the battery and inverter, because an alternative where the diesel engine also contributes to the grid-like AC power will require the diesel engine to operate at the correct speed AND in phase with the inverter. This would not only be a complicated solution, but it would also lower the efficiency of the diesel engine against the wishes of HGsystems." [my emphasis]. However, as described above, this is not the case for the Stride products, as they utilise a direct current (DC) generator that supplies direct current to both the battery and inverter (and thus the output). In this case, the speed of the diesel engine is irrelevant, as the diesel engine drives a DC generator, which therefore has no influence on the phase of the inverter or the output. Furthermore, Hybridgenerator writes in its case presentation (page 14): "If the diesel engine (primary energy source) is used to directly supply network-like AC power, then a 4-cylinder diesel engine should operate at 1500 rpm, but a typical diesel engine is not efficient there."2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 23 However, it doesn't matter if a diesel engine is inefficient if it is used to directly supply network-like alternating current. The wording of claim 1 of the patent requires that the output from the engine is only used to charge the batteries. An efficiently running diesel engine can very well be used to both charge the batteries and supply power to the inverter, bypassing the batteries for the output, as is the case in Combat products. It is thus clear that the Disputed Products do not fall under claim 1 of the Disputed Patent, and it is also clear that Hybridgenerator's justifications do not show that this is the case. It is therefore not likely that the Contested Products infringe the Contested Patent. Conversely, it seems more likely than unlikely that the Contested Products do not infringe the patent, as they do not fulfil essential features of the main claims of the patent. 6 Either the Challenged Patent is invalid or there is no infringement Appendix A1-D1 shows the publication of the Hybrid Generator's hybrid generators prior to the priority date. It is a requirement for the validity of a European patent, cf. Articles 52(1) and 54(2) EPC, that it is new, and it is therefore not possible for the patent in suit to be valid and at the same time cover a hybrid generator that does not differ significantly from Hybridgenerator's own hybrid generators as shown in Appendix A1-D1. This means that if the court reaches the conclusion that the Contested Patent is valid, regardless of the requisiti comments in relation to the lack of validity above under section D4, this will mean that the Disputed Products cannot constitute an infringement of the Disputed Patent. This is because the Hybrid Generators argumentation is based on an interpretation of claim 1, which has already been published by Hybridgenerator itself prior to the priority date. The patent in suit is therefore either invalid for lack of novelty, and if the court does not follow that argumentation, then it is clear that the Contested Products cannot constitute a infringement of the Contested Patent. 7 Conditions for evidence preservation 7.1 The burden of proof Article 60(1) of the UPC Agreement makes the preservation of evidence conditional on the applicant being able to provide 'reasonably available evidence'. 7.2 Proportionality requirements An evidence-protection investigation is a quite intrusive legal remedy, which must at all times fulfil the requirement of proportionality, cf. Article 42 of the UPC Agreement on the general requirement of proportionality and the proportionality requirement of the Enforcement Directive, which applies generally, see Article 3(2). This applies equally to Article 60, which follows from the fact that the provision is based on the Law Enforcement Directive and that UPC must respect EU law, cf. Articles 20 and 24(1) of the UPC Agreement. The EU Charter of Fundamental Rights, which applies when implementing EU law, cf. Article 51(1) of the Charter, thus also contains general provisions on the protection of privacy in Articles 7 and 8. Interference with these is subject to a general principle of proportionality, cf. Article 52(1). The UPC rules on evidence preservation are an implementation of the EU Law Enforcement Directive, which is why the Charter and thus2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 24 the principle of proportionality applies. However, a principle of proportionality is also partially implied in Article 60(1) in fine, which states that the preservation of evidence requires the protection of confidential information. The preservation of evidence can therefore only be carried out with due regard to the proportionality of the interference. 7.3 The conditions in relation to the individual subjects Hybrid Generator's request for preservation of evidence of 16 August 2024 is directed against no fewer than five parties (collectively referred to as requisiti): 1. HG system HG 2. System Holding 3. Infotech Concept 4. Infotech Holding and 5. (personal). It is submitted that this case has no relation to the last four above. Assuming that Hybridgenerator believes that it has a legitimate interest in securing evidence in relation to the Conflicting Products, it is argued that such a case can only be directed against HGSystem. The other four - HGSystem Holding, Infotech Concept, Infotech Holding and should never have been involved in the case. It is only HGSystem's activities that relate to the Conflict Products. In relation to HGSystem Holding and Infotech Holding (which are holding companies for HGSystem and Infotech Concept), Hybridgenerator states that the preservation of evidence is aimed at these companies 'to counter the not unlikely event that has placed relevant evidence in the holding companies'. Nowhere is it even claimed or attempted to imply that these companies have any relation to the Disputed Products, but merely included on a general and undocumented consideration that could potentially have stored evidence in these companies. There is no evidence of this, let alone a probability that this is the case, just as it is disputed to be the case. Thus, there is no reason why the request for preservation of evidence against HGSystem Holding and Infotech Holding should be necessary, cf. Rule 192(2)(1)(c) of the Rules of Procedure. The evidentiary requirement is not met and the request is not proportionate. For this reason, the order must also be cancelled in relation to HGSystem Holding and Infotech Holding. Hybridgenerator seems to have recognised this in connection with the filing of the the merits of the case, as the two companies are not included in this lawsuit.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 25 Further to the latter, we understand that a lawsuit has been filed on the merits of Hybrid Generator on the 26th. September 2024 (however, we still have not received any official information from the local Danish UPC branch in Copenhagen). HGSystem Holding and Infotech Holding are apparently not part of the proceedings on the merits of the case. The court must therefore ensure that the preservation order is cancelled or revoked or otherwise ceases to have effect for those companies, in accordance with Rule 198 of the Rules of Procedure.) In relation to Infotech Concept, Hybridgenerator's rationale for including the company in The evidence in the case shows that the company is the registrant of the domain hgsystem.dk. None of the documents in the case indicate that Infotech Concept has any relation to the disputed products. On the contrary. Infotech Concept is the registered holder the domain for the simple reason that HGSystem had not yet been founded when the domain was acquired. Moreover, based on the documents presented, there can be no doubt that HGSystem is the owner of the domain, which is why it is not necessary to involve Infotech Concept (it should be noted that Hybridgenerator has also stated in its application that the website at the domain hgsystem.dk appears as a company website for HGSystem). The evidentiary requirement is therefore not met and the request is not proportional. For this reason, the order must also be cancelled in relation to Infotech Concept. Finally, in relation to personally, Hybridgenerator's grounds for the application are that the LinkedIn and Facebook posts in Appendices 31-38, Appendices 41-45, Appendices 47-59 and Appendices 65-66 originate from personal LinkedIn profile and personal Facebook profile, and that and that it is therefore 'likely' that has used the knowledge he has from his employment at Hybridgenerator to The latter is merely an expression of Hybrid Generator's speculations, and no evidence has been provided that this is the case, Just as it is not proportionate to base an evidence protection case on a completely unsubstantiated assumption that a former employee may have used his knowledge of the company for personal gain after his employment. Such an attack must be supported by documentation that points this being the case. In this case, no such evidence has even been attempted - we only have the petitioner's conjecture. Furthermore, it is noted that has not personally marketed or sold the Disputed Products. This applies despite the activity that, as shown in the appendices, has been in relation to HGSystems' products, including The disputed products (as the annexes also relate to products that are not the subject of this case). It is clear from the social media posts presented, if you look at appendices 8 and 9, for example, that the posts - despite being made on his personal social media profiles - were made under the auspices of HGSystem. In both appendices 8 and 9, it can be seen that the cover image is an advert for HGSystem. The adverts are therefore made under the auspices of HGSystem and in It is quite usual that directors (and lower ranking employees) are marketing the company they work for via their personal social media profiles. This does not indicate that personally marketed or sold the Strid products. Thus, there is no reason why the request for preservation of evidence against should be necessary, cf. Rule 192(2)(1)(c) of the Rules of Procedure. The evidentiary requirement is not met and the request is not proportional - especially in light of the fact that is personally involved in the case, cf. Articles 7 and 8 of the Charter of Fundamental Rights of the European Union on the protection of privacy. For this reason, the order must also be cancelled in relation to2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 26 Overall, it is claimed that Hybridgenerator has involved parties that are not relevant to and in relation to whom it has not been proven, substantiated or at least pointed to objective circumstances that suggest a connection to the subject matter of the case. This in itself means that the evidentiary requirement for the preservation of evidence is not met, and the preservation of evidence is not necessary or otherwise proportionate. This should lead to the cancellation of the evidence preservation order in relation to HGSystem Holding, Infotech Concept, Infotech Holding and 8 The object of the evidence preservation It should be noted that, by notice of 16 September 2024, the respondent made a number of objections to the subject matter and scope of the preservation of evidence, including the search terms presented by Hybridgenerator, to which no further comments have been received from either the court or Hybridgenerator. The comments made in the letter are maintained, to which reference is also made. 9 Legal costs Rekvisiti requests to be awarded reasonable and proportionate legal costs and other expenses, cf. Article 69(1) of the UPC Agreement. The cost determination shall take into account to ensure that a substantial and appropriate part of the reasonable costs incurred by successful party shall be borne by the losing party, cf. Article 14 of Directive 2004/48 of the European Parliament and of the Council as interpreted by the European Court of Justice in its judgment of 28 July 2016 in Case C-57/15 (United Video Properties). An overview of the costs incurred and the allocation of these costs in connection with the oral hearing will be presented for the court's decision on costs. This applies not least to HGSystem Holding and Infotech Holding, which are not part of the case on the merits. 10 Compensation for unlawful interference Rekvisiti also seeks damages for the unlawfully conducted preservation of evidence. Article 60(9) of the UPC Agreement states that the applicant for a provisional remedy may be liable for damages if he fails to commence the main proceedings in due time, and damages may be awarded for unauthorised use interim measures, see also Rules 198(2) and 354(2) of the Rules of Procedure. 2. Rekvisiti seeks both appropriate damages and compensation for pain and suffering. ..." Rekvisiti's pleading of 29 October 2024: "... C SUPPLEMENTARY STATEMENT OF CASE AND PLEAS2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 27 1 The disputed products do not infringe the claims of the disputed patent 1 As already explained in the request for reconsideration of the evidence preservation order, the Contested Products do not exhibit features 1.6-1.8 of claim 1 of the Contested Patent. In particular, it is emphasised that requirement 1 in features 1.6 and 1.7 specifies that: 1) "the grid-like AC power output is provided only from the rechargeable energy storage unit via the inverter unit" [my emphasis] and that 2) "the output from the primary energy source is only used to charge the rechargeable energy storage unit" [my emphasis]. Furthermore, it is specifically stated that these two conditions, see feature 1.8, must be met for both a) 'normal mode operation' and by b) 'peak power operation'. Reference is also made to the quotations from the description of the patent in suit inserted in the request reconsideration of the order on preservation of evidence section D5 on pages 10-11. In connection with the filing of the Patent Application on 28 October 2021, Hybridgenerator submitted a cover letter (so-called "PCT Direct") with comments on the application and in particular on the EPO search report of 13 April 2021 related to the Priority Application. The cover letter states that the Priority Application's claim 1, which contained the following limitation in the Priority Application: "the grid-like AC power output is provided only from the inverter unit, both during normal mode operation and during peak power operation," was amended upon filing of the Patent Application to add features 1.6-1.8 to claim 1 of the Contested Patent, which specifies that: 1) "the grid-like AC power output is provided only from the rechargeable energy storage unit via the inverter unit, and 2) the output from the primary energy source is only used to charge the2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 28 rechargeable energy storage unit, both during normal mode operation, having normal mode power requirements, and during peak power operation, having peak power requirements," From Hybridgenerator's argumentation in the letter of 28 October 2021, it appears that the above was introduced precisely for the purpose of distinguishing claim 1 from the cited prior art in the EPO search report related the priority application. In the letter, cf. Appendix K on pages 2-3, Hybridgenerator wrote with respect to GB 2 493 631 A (hereinafter "GB 631") (cited as D1 in the EPO search report): "As seen from the citations above the battery in D1 is provided to either assist the genset during peak power operation (par. 12), provide sufficient power for operation during very low load conditions such that the engine can be turned off (par. 15) or provide for a transient power request, such that the engine can be ramped up and then provide the load (par. 16). Hence, the hybrid generator system in D1 is NOT configured such that 1) the grid-like AC power output is provided only from the rechargeable energy storage device via the inverter unit, and 2) the output from the primary energy source is only used to charge the rechargeable energy storage unit, both during normal mode operation and during peak power operation. This fact is most clearly contradicted in par. 15 where it is explicitly stated that the system automatically restarts the engine and operates the engine at an efficient load point by powering the load and charging the battery simultaneously. Thus, present claim 1 is novel over D1" On page 3 of the letter (Appendix K), Hybridgenerator wrote with regard to GB 2434928 A1 (hereinafter "GB 928") (cited as D2): "[...] The inverter is specified as follows in claim 1 of D2: an inverter electrically connected to the DC generator and to the one or more battery cells, the inverter configured to convert DC electricity produced by the DC generator and DC electricity discharged from the one or more battery cells to alternating current ("AC") electricity, the AC electricity available for use by a load. Cf. also figs. 1 and 2 where the inverter is directly connected to both the DC generator and the battery. Hence, the hybrid generator system in D2 is not configured such that2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 29 1) the grid-like AC power output is provided only from the rechargeable energy storage device via the inverter unit, and 2) the output from the primary energy source is only used to charge the rechargeable energy storage unit, both during normal mode operation and during peak power operation. Thus present claim 1 is novel in view of D2" In relation to US 2014/277791 A1 (hereinafter "US 791") (cited as D4), on page 4 of the letter, see Appendix K, Hybridgenerator emphasised that claim 1 of the patent in suit differed based on the amended features: "Par. 29 states as follows: [0029] A hybrid generator (e.g., HYGENTM), such as described herein, fills a longstanding need in the portable generator set arena by addressing current problems such as generators operating very inefficiently and consuming copious quantities of fuel running at partial load. In one embodiment of the invention, the generator may be forced to operate at its most efficient power setting (e.g., prime power), regardless of the user demand. An embodiment may be able to operate a generator at it most efficient power setting because of an on-board battery storage which may allow excess energy to be stored if the user demand is less than a generator's optimum operating regime. If, for example, the user demand is well-matched to the power output, then very little power may be sent to the batteries. Alternatively, if the load is poorly matched to the generator's output, (as is usually the case), then a significant fraction of the generator's output may be stored in the batteries. Once the batteries are charged, the engine may be shut off and the batteries may operate the user load for many hours without the generator operating saving substantial fuel, reducing noise, and reducing emissions. Hence, the hybrid generator system in D4 is not configured such that 1) the grid-like AC power output is provided only from the rechargeable energy storage device via the inverter unit, and 2) the output from the primary energy source is only used to charge the rechargeable energy storage unit, both during normal mode operation and during peak power operation. As cited above D4 explicitly states that the engine-generator distributes power between the load and the battery. Thus present claim 1 is novel in view of D4." It is thus clear from Hybrid Generator's comments in the letter of 28 October 2021 and from the claim amendments in relation to the Priority Application that these features 1.6-1.8 are essential for whether claim 1 has novelty, and thus also for the interpretation of the scope of requirement 1.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 30In particular, it can be concluded that, after the introduction of features 1.6-1.8, claim 1 of the patent in suit explicitly does not make a connection between output from "primary energy source" and "inverter". According to Hybridgenerator, this is conversely the case for the above-mentioned prior art, where Hybridgenerator has pointed to the following Reasons why the counterclaims are not novelty damaging for claim 1 of the Contested Patent: - In relation to GB 631 (D1), Hybrid Generator emphasises that in paragraph 15 it is mentioned that the engine can simultaneously supply power for both the load and for charging the batteries. - In relation to the GB 928 (D2), Hybrid Generator highlights figures 1 and 2, which show that the inverter is directly connected to both the DC generator (DC generator) and battery. - In relation to US 791 A1 (D4), Hybrid Generator highlights that paragraph 29 describes that excess power from the generator is stored in batteries if the load is less than generator output at optimal operation, but that if the load is the same as the generator output, (almost) all power from the generator is directed to the load. Hybrid generator also points to features 1.6-1.8 as essential to the invention described in the patent in suit. For example, it is stated in the pleading of 22 October 2024 (on page 6) that: "This is not correct, and the requester forgets that both 1) and 2) must be present for both peak power operation and normal mode operation." [my emphasis] However, as also described in the request for reconsideration of the order for the preservation of evidence, the Combat Products are designed so that an internal combustion engine drives a direct current (DC) generator that supplies DC power on a common through DC bus to which the batteries and inverter are also connected. So there is a direct connection between the DC generator and the inverter. This is exactly the same principle as mentioned in both GB 631 (D1) where the engine can simultaneously supply power to both the load and to charge the batteries, as in GB 928 where the inverter is directly coupled to both DC generator and battery, and as in US 791 where excess power from the generator can be stored in the batteries, but where all generator output can be consumed by the inverter if the load is the same or greater than the generator output. In other words, the DC generator, batteries and inverter in the Contested Products are coupled in the same way as described in the three counterclaims mentioned above. In other words, the Contested Products function in precisely the way that Hybridgenerator has deliberately written out of the patent claim in order to ensure that the solution did not include the solution that appeared in the counterclaims. An exercise to counter the EPO's objections against lack of novelty of Claim 1 of the priority application in the EPO search report. The connection between the DC generator, batteries and inverter in the Combat Products can be seen in the following images of the Combat Products (the table below is presented as Appendix Q and the individual images as Appendix R).2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 31 Description Photos of the Combat Products This picture shows the complete Strid product - a trailer-based hybrid generator. In this picture you can see the diesel engine and inverter unit before they are installed on the trailer, as seen in the background. This image shows the battery element before installing it in the trailer and without the top cover fitted. As you can see, the battery element mounted with one continuous DC busbar on one side and one another continuous DC bus bar on the opposite side. These are connected to the negative and positive poles of the battery element, as can be seen in the picture.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 32 This picture is taken along the trailer's direction of travel, before the motor, inverter and diesel tank are installed. The image is taken from engine insertion room, which can be seen from the ventilation duct to the right. The picture also shows the battery element lying down in the centre compartment. In addition, the left side of the battery pack shows one end the one through-hole DC bus bar, to which one DC output pole of the motor is connected. The second through DC bus bar is located behind the ventilation duct on the right and is therefore not visible in this picture. Image. This image shows The diesel engine, with associated DC generator, for installation in the engine compartment shown above. As you can see, the motor has a square cooling unit that fits in the vent as shown above. The DC generator delivers direct current (DC output) via six cables, three with negative polarity and three with positive polarity, which is connected during installation2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 33 to one and the other DC bus bar respectively. This image is taken from the centre of the trailer where the diesel tank is installed, towards the engine compartment. The image shows the top of the engine compartment ventilation duct. The picture shows the six cables supplying DC power from the DC generator, three going towards one (positive) DC busbar and three going towards it second (negative) DC busbar. This image shows the right side (in relation to the direction of travel) of the trailer's inverter compartment where the inverter unit is installed. The battery element can be seen at the bottom right of the image. The picture shows the connection of a series of safety switches to one of the two continuous DC bus-bars running along the right side of the trailer side.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 34 This image shows inverter units partially installed in the trailer's inverter compartment. You can see from the image that cables for supplying DC input to the inverter are red and black respectively and pulled to the left and right side respectively for subsequent coupling to one and the other second through DC bus bar. This image shows connecting the red cables from the inverter to the safety switches on the one continuous DC bus bar, as shown in the previous image.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 35 Coupling between motor, battery and inverter is also shown in the 3D visualisations of the Strid products below, shown in perspective and from above (presented as Appendix S): From the above pictures and figures, the coupling between the motor/DC generator, battery element and inverter in the Combat Products can be schematically illustrated as follows (presented as Appendix T):2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 36 It is This makes it clear that the power from the DC generator driven by the combustion engine, is not decoupled from the inverter's DC input, but rather directly connected by the two DC bus bars that run along the length of the trailer on the left and right sides respectively. The diagram also shows that the connection between the motor/DC generator, battery element and inverter in the Combat Products is designed as known from the countermeasures highlighted above, including US 791, which in figure 6 (lower right part) shows the same schematic coupling between motor/generator, battery element and inverter (section of Figure 6 from US 791, see Annex L, coloured in accordance the diagram for the Combat Products): The power from the combustion engine/DC generator is therefore used by the inverter to provide an AC output (alternating current and grid-like output) if the hybrid generator is loaded, and to charge the batteries in cases where the load is less than the output from the DC generator. At maximum load of the Combat Products, all power is generated by the combustion engine, thus used by the inverter to provide an AC output (alternating current and grid-like output) while additional power is drawn from the batteries. This means that in this case, the combustion engine delivers2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 37 power that is not used to charge the batteries and that the grid-like output is partially supplied by the combustion engine. With little or no load on the Combat Products, the excess power generated by the combustion engine is used to charge the batteries. This means that in this case, the combustion engine also supplies power that is partially not used to charge the batteries and that the grid-like output is, at least partially, supplied by the combustion engine. This is exactly as described in paragraph 29 of US 791, and as shown in Figures 1 and 2 of GB 928, which Hybridgenerator in the letter of 28 October 2021 with the amendment of claim 1 highlighted as being outside the scope of protection of claim 1 of the Contested Patent. It is therefore clear that the Combat Products do not fulfil feature 1.6 in requirement 1, which requires that the grid-like output is only delivered from the rechargeable energy storage unit, i.e. the batteries. This is neither the case at maximum load or medium load, see feature 1.8. It is also clear that the Combat Products do not fulfil the condition that the output from 'the primary energy source', i.e. the combustion engine, is only used to charge 'the rechargeable energy storage unit', i.e. the batteries, see feature 1.7. Hybridgenerator writes in its case presentation (page 14): "It is highly likely that the grid-like AC power is only supplied by the battery and inverter, because an alternative where the diesel engine also contributes to the grid-like AC power will require the diesel engine to operate at the correct speed AND in phase with the inverter. This would not only be a complicated solution, but it would also lower the efficiency of the diesel engine against the wishes of HGsystems." [my first emphasis]. However, as described above, this is not the case for the Combat products as these utilise a Direct current (DC) generator that delivers direct current via through and common DC bus-bars to both the battery and inverter (and thus the output). The rotational speed of the diesel engine is subordinate, as The diesel engine drives a DC generator, which therefore does not affect the phase of the inverter or output. Furthermore, Hybridgenerator writes in its case presentation (page 14): "If the diesel engine (primary energy source) is used to directly supply network-like AC power, a 4-cylinder diesel engine must operate at 1500 rpm, but a typical diesel engine is not efficient there." However, it doesn't matter if a diesel engine is inefficient if it is used to directly supply network-like alternating current. The wording of claim 1 of the patent in suit requires that the output of the motor is only2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 38 used to charge the batteries. However, a diesel engine can be used to both charge the batteries and supply power to the inverter, bypassing the batteries for the output, as it is the case in the Combat Products, as well as in several of the countermeasures cited during the review, while running efficiently. Attached as Exhibit U is a written witness statement from confirming that the connection between the DC generator, batteries and inverter in the Contested Products is as described above. It is thus clear that the Contested Products do not exhibit all the features of claim 1 of the Contested Patent and it is It is also clear that Hybridgenerator's justifications do not document that this is the case either. Thus, it has not been made probable that the Disputed Products infringe the Disputed Patent. Conversely, it seems more likely than unlikely that the Contested Products do not infringe the Contested Patent, as they do not fulfil essential features of the main claims of the Contested Patent, which Hybridgenerator has deliberately narrowed down in connection with the filing of the Patent Application and otherwise emphasised as central to distinguish The scope of protection of the patent in suit from the prior art. 2 The patent in suit is invalid 2.1 Introduction The patent in suit lacks novelty in relation to a number of patent applications published prior to the filing date of the Priority Application on 28 October 2020. Of these, two such patent applications are selected and presented below, cf. sections C2.2 and C2.3, reserving the right to present further newsworthy in the context of the main proceedings. The patent in suit is therefore invalid on the basis of Articles 52(1) and 54(2) EPC. As explained in the request for reconsideration of the order for preservation of evidence, the scope of the patent in suit also covers Hybridgenerator's own products, which have been sold and marketed, including publicly publicised and described, prior to the submission date on The priority application on 28 October 2020. Reference is made to section D4.1 on pages 5-8 of the application. The patent in suit is therefore invalid as it does not fulfil the requirement of novelty, cf. Articles 52(1) and 54(2) EPC. Furthermore, the patent in suit lacks inventive step in relation to the prior art at the filing date of the Priority Application, see section C2.4. The patent in suit is also for this reason invalid, see Article 56 EPC. This will be explained in the following sections. In the following, reference will be made to this feature classification of claim 1 of the patent in suit, which otherwise identical to the Hybrid Generator feature classification: Traction Claim 1 of the patent in suit 1.1 A mobile hybrid generator system for providing grid-like AC power output to a load at offgrid locations, 1.2 the hybrid generator system comprising a housing accommodating: 1.3 - a rechargeable electrical energy storage unit, such as a battery, configured to provide aDC power output,2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 39 1.4 - at least a first primary energy source, such as a combustion engine, for charging the rechargeable energy storage unit, and 1.5 - an inverter unit configured for converting the DC power output from the rechargeableenergy storage unit to the grid-like AC power output, wherein the mobile hybrid generator is configured such that 1.6 1) the grid-like AC power output is provided only from the rechargeable energy storage unitvia the inverter unit, and 1.7 2) the output from the primary energy source is only used to charge the rechargeable energy storage unit, 1.8 both during normal mode operation, having normal mode power requirements, and during peak power operation, having peak power requirements, 1.9 he mobile hybrid generator system characterised in that the at least first primary energy source is dimensioned to the normal mode power requirements, i.e. much smaller than for the peak power requirements 2.2 The patent in suit is not new compared to GB 2434928 A1 ("GB 928") 59. GB 928 (presented as Annex F) describes a generator ("a generator set") which includes an internal combustion , a direct current generator ("DC generator"), one or battery cells and an inverter (see Annex F, page 1, lines 23-24). GB 928 also describes an example where the DC generator driven by the combustion engine does not supply power to the inverter, but supplies all power for charging the batteries, and where power for the inverter, and thus the output, is supplied solely from the batteries (see Appendix F, page 5, lines 22-27). Finally, GB 928 also describes that the maximum load ("surge rating") is dictated by the batteries and the size and/or capacity of the inverter and that a higher maximum load can be achieved than be the case for a generator without battery and inverter (see Appendix F, page 6, line 2-6). This means that it is It is clear that GB 928 refers to a hybrid generator where the combustion engine is not capable of delivering the maximum load where the engine is therefore dimensioned smaller than the requirements for the maximum load. As can be seen, GB 928 shows an example of a patent application, published before the priority date of the Dispute Patent, which describes the same elements as claim 1 of the Dispute Patent. Below is a table showing that GB 928 exhibits all features of claim 1 of the Dispute Patent (the claim matrix is also presented as Appendix G): Features in claim 1 of the patent in suit GB 928 (Appendix F) 1.1 A mobile hybrid generator system for providing grid-like Figures 4A-4D clearly show a mobile system on page 3, Lines 29-31 further explain: "For example, the2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 40AC power output to a load at off-grid locations, engine 115 may be an internal combustion engine sized such that the generator set 105 can be easily moved from one location to another (i.e. a portable generator set)."Page 4, lines 9-12 further explain: "In some embodiments, the inverter 125 converts DC electricity to a 60 hertz ("Hz") 120 volt AC source", and alternatively: "For example, the inverter 125 may convert DC electricity to a 50 hertz signal and/or a 240 volt AC voltage source." This corresponds to The patent in suit's own definition of "gridlike AC power" (see Section [0010] of the Combat Patent). 1.2 the hybrid generator system comprising a housing accommodating: Figure 4A-4D clearly shows that the system has a housing that contains the components of the system, page 4, lines 21-22 further describes: "In one embodiment, the batteries 130 are integrated into or housed within the generator set 105." 1.3 - a rechargeable electrical energy storage unit, such as a battery,configured to provide a DC power output, Page 1, line 28-page 2, line 2: "The inverter converts DC electricity produced by the DC generator and DC electricity discharged from the one or more battery cells to alternating current ("AC") electricity." Page 5, line 2-3: "Once the batteries 130 are at least partially charged, the batteries 130 can provide a DC voltage to the inverter 125." 1.4 - at least a first primary energy source, such as a combustion engine, for charging the rechargeable energy storage unit, and Page 4, line 27-page 5, line 1: "During use, the engine 115 provides the mechanical force needed to drive the generator 120." And further "The DC generator 120 also provides a DC voltage to the batteries 130, which charges the batteries 130 until they reach a certain capacity." It is therefore clear that an engine 115 is used to charge the batteries. 1.5 - an inverter unit configured for converting the DC power output from the rechargeable energy storage unit to the grid- like AC power output, Page 5, line 2-4: "Once the batteries 130 are at least partially charged, the batteries 130 can provide a DC voltage to the inverter 125, which converts the DC voltage to power the load 105." wherein the mobile hybrid generator is configured such that 1.6 1) the grid-like AC power output is provided only from the rechargeable energy storage unit via the inverter unit, and Fig. 1 shows a block diagram where it can be seen that The DC generator ("DC generator" 120) supplies power to both the inverter (125) and the batteries (130). However, page 5, lines 26-27 describe that the system can alternatively be configured so that the inverter powered solely by power from the batteries: "In this2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 41 alternative embodiment, the DC voltage is supplied to the inverter 125 by the batteries 130 only." 1.7 2) the output from the primary energy source is only used to charge the rechargeable energy storage unit, As mentioned above, it is described on page 5, line 22- 23, in the context of the above, the system can be configured such that the DC generator (driven by the motor 115) does not supply power to the inverter, but that all the power from the DC generator is used to charge the batteries: "the DC generator 120 does not supply voltage to the inverter 125, and routes all of the voltage to the batteries 130 to charge them." 1.8 both during normal mode operation, having normal mode power requirements, and during peak power operation, having peak power requirements, From page 6, lines 2-6, it is clear that the hybrid generator described has the advantage that the battery and inverter handle peak loads ("power surge"): "However, in some embodiments of the present invention, the surge rating is dictated by the size and/or capabilities of the batteries 130 and the inverter 125. As such, a relatively higher surge rating may be gained by a generator (such as the generator 115) that includes an inverter 125 and one or more batteries 130, than a generator that does not include batteries and an inverter." It is therefore clear that the above coupling between motor, battery and inverter applies both in normal operation and at high loads. 1.9 the mobile hybrid generator system characterised in that the at least first primary energy source is dimensioned to the normal mode power requirements, i.e. much smaller than for the peak power requirements. On page 6, lines 2-6 it is described that the maximum load ("surge rating") is dictated by the size and/or capability of the batteries and inverter, and that a higher maximum load can be achieved than would be the case of a generator without battery and inverter: "However, in some embodiments of the present invention, the surge rating is dictated by the size and/or capabilities of the batteries 130 and the inverter 125. As such, a relatively higher surge rating may be gained by a generator (such as the generator 115) that includes an inverter 125 and one or more batteries 130, than a generator that does not include batteries and an inverter." This makes it clear that the motor is not capable of delivering the maximum load and that the motor is therefore dimensioned less than the requirements for the maximum load.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 42 It is thus clear that GB 928 deprives novelty for claim 1 of the Contested Patent and that the Contested Patent is thus invalid due to lack of novelty. It is noted that GB 928 was disclosed by the examiner at the EPO in connection with the examination of the patent in suit. The application was first disclosed in connection with the search report for the priority application (presented as Appendix H) and later also mentioned in the international search report (presented as Appendix I) and in the international preliminary patentability assessment (presented as Appendix J). During the prosecution, GB 928 is referred to as "D2". However, in connection with the case processing, it is important to note that Hybrid Generator in a letter dated 28 October 2021 (submitted as Appendix K), which was filed together with the filing of the Patent Application, argues that GB 928 does not deprive claim 1 of novelty, as GB 928 in Figures 1 and 2 shows that the inverter is directly coupled to both the DC generator and the battery, and therefore, after Hybrid Generator's view, not showing traits 1.6-1.8: 1) "the grid-like AC power output is provided only from the rechargeable energy storage unit via the inverter unit, and 2) the output from the primary energy source is only used to charge the rechargeable energy storage unit, both during normal mode operation, having normal mode power requirements, and during peak power operation, having peak power requirements," However, this is not correct, as shown above, as GB 928 is also, see Appendix F on page 5, line 22-27, describes that the system can alternatively be configured so that the inverter is powered solely by power from the batteries and the DC generator is used solely for charging the batteries: "In an alternative embodiment, the DC generator 120 does not supply voltage to the inverter 125, and routes all of the voltage to the batteries 130 to charge them. The engine 115 continues to operate until the batteries 130 reach a predetermined charge level (e.g., full capacity, 95% capacity, etc.). Upon sufficient charge of the batteries 130, the engine 115 shuts down. In this alternative embodiment, the DC voltage is supplied to the inverter 125 by the batteries 130 only." The caseworker has not commented further on GB 928 during the case processing and it is therefore It is obvious to conclude that the examiner has mistakenly applied Hybridgenerator's incorrect comment in the letter of 28 October 2021 (Appendix K), and on that basis incorrectly assessed that claim 1 had novelty over GB 928. 2.3 The patent in suit is not new compared to US 2014/277791 A1 ("US 791")2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 43 US 791 (presented as Annex L) describes a hybrid generator that includes a fuel powered engine that drives an alternator, one or more batteries that receive and store power from the generator and an inverter to convert power from the batteries to provide AC power to a load (see section [0005]). US 791 also describes in paragraph [00029] that once the batteries are charged, the engine can be switched off and the batteries can then provide the necessary power to the load for several hours. Finally, US 791 also describes in paragraph [00049] that the inverter can be dimensioned deliver 300-400% power compared to the alternator driven by the engine, and that this means that the alternator only needs to be dimensioned for an average load - and not for maximum load. It is therefore clear that the generator driven by the combustion engine is dimensioned less than the requirements for the maximum load. As seen below, US 791 shows another example of a patent application published before the priority date that discloses all claim elements of claim 1 of the Dispute Patent. Below is a table showing that US 791 exhibits all features of claim 1 of the Dispute Patent (the claim matrix is also presented as Appendix M): Features in claim 1 of the patent in suit US 791 (Appendix L) 1.1 A mobile hybrid generator system for providing grid-like AC power output to a load at off- grid locations, Figure 1-5 clearly shows a trailer-based system. in other words, a mobile system. This is also mentioned in paragraph [00031]: "Portable hybrid generator 100 includes a hybrid generator coupled to a portable trailer frame."Paragraph [0005] mentions that US 791 relates to a hybrid generator that provides "usable electcitity for AC or DC loads", i.e. grid-like alternating current for a load. 1.2 the hybrid generator system comprising a housing accommodating: Figure 1-5 clearly shows that the system has a housing that contains the system components. 1.3 - a rechargeable electrical energy storage unit, such as a battery,configured to provide a DC poweroutput, Paragraph [0005] mentions that the hybrid generator includes one or more batteries to store power, from paragraph [00027] and from figure 6, bottom right, it is clear the batteries are in a DC system and thus delivers direct current. 1.4 - at least a first primary energysource, such as a combustion engine, for charging the rechargeable energy storage unit, and Paragraph [0005] mentions that the hybrid generator includes an internal combustion engine and a generator coupled to the engine, and that the batteries receive and store power from the generator. Figure 6, in the lower right part, also shows that the diesel engine drives a generator that supplies alternating current to a rectifier that supplies direct current to the batteries. 1.5 - an inverter unit configured for converting the DC power output from the rechargeable energy storage unit to the grid-like AC power output, Paragraph [0005] mentions that the hybrid generator includes an inverter that converts the stored energy from the batteries into alternating current. This is also shown in figure 6, bottom right partshowing that the DC output from the batteries is connected to the inverter, which converts the DC input into an AC output.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 44 wherein the mobile hybrid generator is configured such that 1.6 1) the grid-like AC power output is provided only from the rechargeable energy storage unit via the inverter unit, and Paragraph [00029] describes that once the batteries are charged, the engine can be shut off and the batteries can then provide the necessary power for the load over several hours: "Once the batteries are charged, the engine may be shut off and the batteries may operate the user load for many hours without the generator operating saving substantial fuel, reducing noise, and reducing emissions." It is therefore clear that at least when the batteries are sufficiently charged, the hybrid generator's output comes from the batteries alone. 1.7 2) the output from the primary energy source is only used to charge the rechargeable energy storage unit, Paragraph [00029] further describes that excess energy is stored in the batteries: "An embodiment may be ableto operate a generator at it most efficient power settingbecause of an on-board battery storage which may allowexcess energy to be stored if the user demand is less thana generator's optimum operating regime." 1.8 both during normal mode operation, having normal mode powerrequirements, and during peakpower operation, having peakpower requirements, Clause [00049] describes that the inverter can handle loads of between 300-400% of the generator's capability. It is clear that the generator is configured for both normal operation and high loads. 1.9 the mobile hybrid generator system characterised in that the at least first primary energy source is dimensioned to the normal mode power requirements, i.e. much smaller than for the peak power requirements Paragraph [00049] describes that it is advantageous that the generator (i.e. first primary energy source) is dimensioned for the average load and not the maximum load: "Using an inverter that can surge to 300%-400% of generator rated load in order to start large inductive loads provides non obvious advantages. For example, the generator need only be sized for the average load, not the peak load, thereby saving consider expense in initial purchase cost, and considerable expense in reduced operating costs." It is thus clear that claim 1 of the Contested Patent is not novel in light of US 791 and that the Contested Patent is therefore invalid due to lack of novelty.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 45 It is noted that US 791 was disclosed by the examiner at the EPO in connection with the examination of the patent in suit. The application was first disclosed in connection with the search report for the priority application (Annex H) and later also mentioned in the international search report (Annex I) and in the international provisional patentability assessment (Annex J). During prosecution, US 791 is referred to as "D4". However, in connection with the case processing, it is important to note that the Hybrid Generator in the letter of 28 October 2021 (Appendix K), which was submitted together with the filing of the Patent Application, argued that US 791 does not deprive claim 1 of novelty because US 791, in Hybrid Generator's view, does not show features 1.6-1.8: 1) "the grid-like AC power output is provided only from the rechargeable energy storage unit via the inverter unit, and 2) the output from the primary energy source is only used to charge the rechargeable energy storage unit, both during normal mode operation, having normal mode power requirements, and during peak power operation, having peak power requirements," The case examiner has not commented further on US 791 during the case processing, and it is therefore reasonable to conclude that the case examiner has mistakenly added Hybridgenerator's incorrect comment in the letter of 28 October 2021, and on that basis assessed that claim 1 had novelty above US 791. 2.4 Contested patent inventive step based on GB 2 493 631 A ("GB 631") It is argued that if the court disagrees that the claims of the Contested Patent do not fulfil the novelty requirement, it does not fulfil the inventive step requirement and also for that reason the Contested Patent cannot form the basis for Hybridgenerator's request for evidence in this case. However, this case is special in that the counterclaims in GB 928, US 791 and Hybridgenerator's own products are not only similar to the solution in the patent in suit, but identical to the solution in The patent in suit. The opposing claims are even within the same technical field. Against this background, it is irrelevant and pointless to discuss whether the Contested Patent has inventive step, as it is obvious that The patent in suit is already invalid due to lack of novelty. However, it is argued - if the court does not agree with the remarks on lack of novelty above - that the Contested Patent at least cannot be upheld due to lack of inventive step, cf. Article 56 EPC. The relevant assessment in this context is whether the technology described in the patent in suit differs significantly from the technology known at the priority date of the patent in suit. This assessment is based on whether the technology was obvious to a skilled person. In the assessment of2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 46 inventive step is based on the so-called problem and solution approach. The PSA analysis has three main steps: a) Determination of the "closest prior art", b) defining the 'objective technical problem' to be solved, and c) assessment of whether the claimed invention, based on the closest prior art and the objective technical problem, is obvious to the skilled person. The assessment of inventive step - including the PSA analysis to the extent that it is applicable in relation to the objections raised - is discussed below. When selecting the closest prior art after the PSA analysis, the first consideration is that the closest prior art must have a similar purpose or function to the invention or at least belong to the same technical field as the claimed invention. All the defences raised in this case - including Hybridgenerator's own previous products - are hybrid generators that exhibit the same function as claim 1 of the patent in suit. Therefore, it would be reasonable to consider all of the asserted prior art as the closest prior art. The determination of the objective technical problem presupposes that the technical features of the invention that are different from what appears in the prior art can be identified. However, this is not really possible in relation to the prior art in this case, as the prior art is not 'missing anything' in relation to the solution in the patent in suit, and the prior art is thus identical to the patent in suit. Therefore, it is not possible to meaningfully use the counterclaims in connection with a PSA analysis. Thus, there no changes or improvements to the product that the skilled person must use in connection with the solution of the objective technical problem. It is argued that it is undoubtedly obvious for the skilled person to find the solution in an identical hybrid generator. Thus, the skilled person does not even need to find inspiration from other areas. When granting the patent in suit, the EPO examiner also assessed that the patent in suit's Claim 1 was new compared to GB 631 (presented as Appendix N), which during prosecution was referred to as "D1", based on the characterising part of claim 1 of the Contested Patent: "the mobile hybrid generator system characterised in that the at least first primary energy source is dimensioned to the normal mode power requirements, i.e. much smaller than for the peak power requirements." During the issuing procedure, the caseworker has expressed on several occasions that GB 631 showed all additional features in claim 1. Among other things in the preliminary international patentability assessment (Appendix J), and also in email correspondence with Hybrid Generator's patent agent on 31 May 2024 (presented as2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 47 Appendix O) and 3 June 2024 (submitted as Appendix P). It is not clear from the case history what the examiner has used as a basis for recognising the inventive step of the issued claim 1. However, if we assume that the GB 631 is the closest prior art and that it differs from the invention by the absence of the above features, then the objective technical problem can be described as how to create a more sustainable and efficient generator system. GB 631 mentions that "the system 10, may be operated in several modes of operation", see section [0011], and section [0015] states that "the ESS is used to provide power during load spikes" (ESS is in GB 631 a abbreviation for "energy storage system" and thus the battery, see section [0010]). This indicates the expert that the motor does not need to be able to supply all the necessary power at peak load. In Appendix C1 (at 11:20-11:35), which deals with a hybrid generator, it is specifically mentioned that, in order to save weight, the engine should be dimensioned so that it can only cover the nominal load. US 791 (as described above) mentions in paragraph [0040] that costs can be saved in both production and use by using an engine sized only for the average load rather than maximum load. It is thus clear that the skilled person seeking to solve the objective technical problem of creating a more sustainable and efficient generator system based on GB 631 will be inspired by either the benefit of reduced weight, as mentioned in Appendix C1, and/or the cost savings, as mentioned in US 791, size the engine for the average load rather than the maximum load, and thus propose a solution that is within the scope of claim 1 of the patent in suit. It is therefore clear that claim 1 of the patent in suit also lacks inventive step based on GB 631. All of the asserted prior art - including Hybridgenerator's own previous products - are hybrid generators that exhibit the same function as claim 1 of the patent in suit. Therefore, it would be reasonable to consider all of the asserted prior art as the closest prior art. The determination of the objective technical problem presupposes that the technical features of the invention that are different from what appears in the prior art can be identified. However, this is not really possible in relation to the prior art in this case, as the prior art is not 'missing anything' in relation to the solution in the patent in suit, and the prior art is thus identical to the patent in suit. Therefore, it is not possible to meaningfully use the counterclaims in connection with a PSA analysis. Thus, there no changes or improvements to the product that the skilled person must use in connection with the solution of the objective technical problem. It is argued that it is undoubtedly obvious for the skilled person to find the solution in an identical hybrid generator. Thus, the skilled person does not even need to find inspiration from other areas.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 48 When granting the patent in suit, the EPO examiner also assessed that the patent in suit's Claim 1 was new compared to GB 631 (presented as Appendix N), which during prosecution was referred to as "D1", based on the characterising part of claim 1 of the Contested Patent: "the mobile hybrid generator system characterised in that the at least first primary energy source is dimensioned to the normal mode power requirements, i.e. much smaller than for the peak power requirements." During the issuing procedure, the caseworker has expressed on several occasions that GB 631 showed all additional features in claim 1. Among other things in the preliminary international patentability assessment (Appendix J), and also in email correspondence with Hybrid Generator's patent agent on 31 May 2024 (presented as Appendix O) and 3 June 2024 (presented as Appendix P). It is not clear from the case history what the examiner has used as a basis for recognising the inventive step of the issued claim 1. However, if we assume that the GB 631 is the closest prior art and that it differs from the invention by the absence of the above features, then the objective technical problem can be described as how to create a more sustainable and efficient generator system. GB 631 mentions that "the system 10, may be operated in several modes of operation", see section [0011], and section [0015] states that "the ESS is used to provide power during load spikes" (ESS is in GB 631 a abbreviation for "energy storage system" and thus the battery, see section [0010]). This indicates the expert that the motor does not need to be able to supply all the necessary power at peak load. In Appendix C1 (at 11:20-11:35), which deals with a hybrid generator, it is specifically mentioned that, in order to save weight, the engine should be dimensioned so that it can only cover the nominal load. US 791 (as described above) mentions in paragraph [0040] that costs can be saved in both production and use by using an engine sized only for the average load rather than maximum load. It is thus clear that the skilled person seeking to solve the objective technical problem of creating a more sustainable and efficient generator system based on GB 631 will be inspired by either the benefit of reduced weight, as mentioned in Appendix C1, and/or the cost savings, as mentioned in US 791, size the engine for the average load rather than the maximum load, and thus propose a solution that is within the scope of claim 1 of the patent in suit. It is therefore clear that claim 1 of the patent in suit also lacks at least inventive step based on GB 631. 2.5 Hybrid generator cannot rely on a subsidiary set of requirements In the pleading of 22 October 2024, Hybridgenerator argues that the Contested Patent is valid based on at least a combination of claim 1, claim 14 and part of claim 15 and that the order must be amended accordingly.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 49 It is noted that the proof required for the validity of the contested patent in proceedings for provisional measures remedies do not concern the question of whether the Dispute Patent could have been issued in an amended form, but whether the Dispute Patent is valid in its current version. It is therefore not possible to invoke an amended version of the Contested Patent in the context of an evidence protection case. Instead, the validity of the patent in suit must be considered as issued - here as issued by the EPO. This follows directly from the practice of the UPC. It should also be noted that the proposed amended claim is not valid either, as these features can also be found in the counterclaims mentioned above. 2.6 Summary of invalidity (lack of novelty and inventive step) As stated above, claim 1 of the patent in suit does not fulfil the requirements of novelty according to Articles 52(1) and 54(2) EPC or the requirements of inventive step according to Article 56 EPC. The patent in suit may therefore not be considered valid, and therefore cannot form the basis for an order for preservation of evidence. Alternatively, it means that the presumption of validity is at least weakened to such an extent that the patent in suit cannot form the basis for the request for preservation of evidence. In its statement of case, Hybridgenerator states that the features in subclaim 5 (fuel tank and combustion engine), subclaim 6 (LTO battery), subclaim 7 (solar cells) and subclaim 13 (the hybrid system is mounted on a trailer) are also assumed to be exhibited by the Contested Products. Hybrid Generator relies solely on claim 1 in support of its request, and it is therefore merely noted that these features are also known from Hybrid Generator's own products even before the priority date (cf. appendices A-D) and also from several of the defence submissions, e.g. Appendix F and Appendix L. 3 Either there is no infringement or the patent in suit is invalid Based on the above, it is claimed that the Contested Products do not constitute an infringement of The Combat Patent, especially in light of the narrowing of the Combat Patent and the technical composition and functionality of the Combat Products. If the court nevertheless concludes that the Disputed Products exhibit all claim elements of Claim 1 of the patent in suit, the consequence is that the patent in suit is invalid. This is because Hybrid Generator's argumentation regarding the alleged infringement is based on an interpretation of claim 1, which already published by the Hybrid Generator itself prior to the priority date, cf. Annexes A-D, and described in the prior art, cf. Annexes F and G. It is therefore not possible for the patent in suit to be valid and at the same time cover a hybrid generator that is identical to or not significantly different from the hybrid generators described in the cited patent applications described above and presented as Appendix F and Appendix L or from Hybrid Generator's own hybrid generators as shown in Appendix A-D.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 50Either the Contested Products therefore do not infringe the Contested Patent and alternatively - if the court does not follow this argument - it is clear that the Contested Patent is invalid due to lack of novelty..." Rekvisiti's pleading of 18 November 2024: "... SUPPLEMENTARY STATEMENT OF CASE AND PLEAS 1 The disputed products do not infringe claim 1 of the disputed patent As already explained in the request for reconsideration of the order to preserve evidence and in the pleading of 29 October 2024, the Contested Products do not exhibit features 1.6-1.8 of claim 1 of the Contested Patent. The coupling between the motor/DC generator, battery element and inverter is, however, as described in detail in the pleading of 29 October 2024, illustrated in Appendix T and documented with the written witness statement from in Appendix U. Hybridgenerator writes in its pleading of 8 November 2024 (page 4): "It is not disputed by the petitioner that the following solution [as shown in Appendix T] described in the petition differs from the patent in suit". Appendices Q and R also show photos of the connection between the DC generator, batteries and inverter in the Combat Products. Appendix S shows 3D visualisations of the connections in the Combat Products. Appendix Q and R shows an MPU3000 from HGSystem. To date, only one single MPU3000 has been developed and assembled example - a prototype - of an MPU3000, and that example was completed in the spring of 2024, i.e. prior to the date of proof. It can therefore be denied that further developments of the Strid products (MPU1000, MPU2000 and/or MPU3000) have taken place after the evidence was secured. Hybrid Generator's conjecture (based on the information about increased peak load in appendices 64 and 64) that appendices Q and R show a newly developed MPU3000, which is not the subject of the case, is therefore not correctly. The increased peak load is achieved by configuring the product with, for example, a larger battery or by increasing the number of inverter modules. However, it should be noted that no product has yet been produced with the increased peak load described in appendices 64 and 65. The use of the word 'newly developed' in Appendix 65 refers to the fact that the MPU3000 is HGSystems' most recently developed product and that the product will be fully developed in 2024 (but prior to the evidentiary hearing), and is now ready for production. Attached as Appendix V is a written witness statement from who has assisted HGSystem with the development of the Combat Products. confirms that the connection between DC generator, batteries and inverter in the Combat Products are as illustrated in Appendix T and that all Combat Products (MPU1000, MPU2000 and MPU3000) operate according to the same principle and with2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 51 same electrical connection from the motor/DC generator via two DC busbars to both battery and inverter. It is further confirmed in the witness statement from that the example of MPU3000 shown in Appendix Q and R was assembled in April and May 2024. In its pleading of 8 November 2024, Hybridgenerator claims that the witness statement from is not supported by evidence. This is not correct. Firstly, the written witness statement itself constitutes just such evidence. Second, Hybridgenerator ignores the existence of Exhibits Q and R, which precisely documents the connection between DC generator, batteries and inverter in an MPU3000 (which according to the written witness statements from in Appendix U and in Appendix V are structured and function in the same way as MPU1000 and MPU2000). 3D visualisations of the links in Appendix S are also provided The battle products that also document the connection between DC generator, batteries and inverter. 2 Hybrid generator conjecture about a less efficient solution Hybrid Generator's entire case is based on the postulate that a solution other than the one described in claim 1 of the Dispute Patent would be less effective than the Dispute Patent solution (and therefore "must" The disputed products would have utilised the solution of the disputed patent). However, Hybridgenerator has not specified why it should be the case that this solution is "more effective" than other solutions. On the contrary, the best efficiency is achieved by allowing the inverter to use the power directly from the motor/DC generator so that energy is not unnecessarily wasted by first having to be stored in the batteries. The written witness statement submitted by Hybridgenerator as Appendix 66, prepared by Hybridgenerator, does not describe why Hybridgenerator and is of the opinion that the solution used by HGSystem 'cannot be operated in the most efficient mode in the same way' and why, if this is the case, it should indicate that HGSystem - despite the description and documentation of the solution used in the pleadings, annexes and the written witness statements from and - still use the solution described in the Dispute Patent. 3 Witness statement (Appendix 66) accuses HGSystem in its witness statement of having manufactured the hybrid generator in Appendices Q and R 'for the occasion'. The reason is to be found in analysis of the season shown in the images. concludes that the images on pages 1, 6 and 7 were taken in autumn (after the evidence was secured), as the leaves of the trees have fallen off and the remaining leaves are orange, and that the hedge is missing leaves and the remaining leaves are orange. The picture on page 8 concludes was taken in spring or summer, which in opinion is not is consistent with the image on page 8 showing a later stage in the assembly of the Combat Product. This conclusion is based on a misunderstanding from The images on pages 1, 6 and 7 were therefore not taken in autumn, but in spring 2024 before the beech has sprouted. It is true that the image on page 8 was taken later - in May 2024 - and thus correctly shows a later step in the collection, which was taken after the beech has sprouted.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 52 states (allegedly because the machine has been moved) that there is no reason to believe that it is the same hybrid generator shown on page 8 and page 9 of Appendix Q. However, does not explain why 'there is no reason to believe that it is the same machine as shown on page 8. Reference is made to the written witness statement in Annex V from which documents that (i) only one copy of the MPU3000 has been manufactured and (ii) the assembly of the prototype (as shown in Annex Q) commenced in April 2024 and was fully assembled in May 2024. It is thus clear that the Contested Products do not exhibit all the features of claim 1 of the Contested Patent and it is It is also clear that Hybrid Generator's reasons (including that the MPU3000 model shown in appendices Q and R is a new development made after the evidence was secured) do not document that it is the case. On the contrary. The attempt to cast doubt on the design of the Combat Products is disproved by the written witness statements from in Appendix U and in Appendix V. They both declare that all the Contested Products operate on the same principle and with the same electrical connection from motor/DC generator via two DC busbars to both battery and inverter. This corresponds to the illustration in Appendix T, which Hybrid Generator in the pleading of 8 November 2024 confirms does not constitute an infringement of The patent in suit..." Pleading dated 22 October 2024 from the petitioner: "... 3. Requester's comments on the items in the request for reconsideration The appellant's request for reconsideration of the Court's order rise to the following observations: 3.1. Activities related to the Norwegian company HGSystem AS (point 1.1 in the request for review) The applicant does not dispute that the activities of the Norwegian company HGSystem AS, which take place in Norway, are not covered by the case. Since it is undisputed that the production of the infringing products takes place Denmark, the Respondent's comments in section 1.1 of the request for reconsideration appear to be irrelevant to the decision on whether the order should be amended or cancelled. The applicant agrees that any information about activities in the evidence secured material that only related to HGSystem AS' activities in Norway should not be included in the evidence report. 3.2. Alleged attempt to discredit (point 1.2 of the request for reconsideration) The Respondent's assertion that "several of the appendices have the sole purpose of misrepresenting/discrediting is disputed.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 53 Annex 37 is submitted to draw the Court's attention to the fact that is in possession of a shredder, which in its own words its "number one favourite office machine", and that there was thus a real risk that relevant evidence would be deleted if the requisitioner were to have prior notice of the execution of the evidence preservation operation. The name of the person behind the comment "delete all traces" to the post has been anonymised by the petitioner because it is irrelevant to the case who the person is. In the petitioner's opinion, there is no evidence that this anonymisation, as claimed by the petitioner, has been done to give the false impression that "it should be itself" who has commented on its own post. 3.3. On the standard of proof for patent infringement (points 1.3 and 5 of the request for reconsideration) The condition for the implementation of evidence preservation is that "reasonably available evidence" is presented to support that a patent has been infringed or will be infringed, cf. Article 60(1) of the UPC Agreement. The concept of "reasonably available evidence" is repeated in several legal acts on the protection and enforcement of intellectual property rights, including Article 43(1) of the TRIPS Agreement and Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights ("Enforcement Directive") Article 7(1). Since a main purpose of proof is to ensure the existence of a patent infringement, it cannot be made a condition that the infringement is proved. According to UPC case law, circumstantial evidence may constitute sufficient proof that the condition is met. By ORD 9825/2024 of 1 March 2024 in case UPC CFI 397/2023, the French local division in Paris of the Court of First Instance of the Unified Patent Court issued an order in a case similar to the present case concerning the examination of a request for reconsideration of an order authorising the carrying out of evidence protection (Annex 60). In the case, the Court held that the requirement in Article 60(1) of the UPC Agreement that "reasonably available evidence" must be interpreted as meaning that "the application should not be based on simple assumptions or allegations that are not supported by sufficient evidence, the aim being to gather all the means to prove the alleged infringement." [...] "In support of its application, particularly in the context of ex parte proceedings, the applicant has the obligation to present the facts fairly, without distorting their integrity." In the above case, the evidence consisted of one brochure showing the infringing product and a printout from a publicly available website that also showed the infringing product. The Court found that this material together constituted reasonably accessible evidence for the purpose of preserving evidence. The reasonably available evidence in this case is summarised in the petitioner's claim matrix in section 2.2. in the request for evidence preservation. The Court has already found that the petitioner's evidence and claim matrix constitute such reasonably available evidence to support that the patent in suit is infringed or will be infringed. It is then up to the petitioner to refute the probable infringement.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 54 In section 1.3 of its request for reconsideration, the petitioner argues that the petitioner's evidence of infringement is insufficient from an overall perspective, without, however, presenting any evidence that the petitioner's infringement assessment is incorrect. It is therefore argued that the content of section 1.3 cannot constitute a basis for either cancellation or amendment of the order In section 5, the respondent specifies why, in the respondent's opinion, the infringing products do not constitute an infringement of the patent in suit. It is stated that the infringing products do not fulfil the following requirements in the patent in suit: 1) "the grid-like AC power output is provided only from the rechargeable energy storage unit via the inverter unit, and 2) the output from the primary energy source is only used to charge the rechargeable energy storage unit, both during normal mode operation, having normal mode power requirements, and during peak power operation, having peak power requirements," The applicant submits that the contested products differ from the listed features in that they utilise an internal combustion engine to drive a direct current (DC) generator and that the DC current generated is used by the inverter to provide an AC output when the hybrid generator is loaded and to charge the batteries when the load is less than the output of the DC generator. If the combat products actually work as stated, it would have been a simple task for the requisitioner to document this. Based on the requisitioner's own marketing, it must be presumed that the requisitioner, as alleged, uses a solution that is technically inefficient compared to the solution that helped develop at the requisitioner. One of the main purposes of the preservation of evidence is precisely to obtain evidence of the existence of infringement. Therefore, it must be detrimental to the petitioner in terms of evidence that they have not provided evidence of the correctness of the technical description that can disprove the probable infringement of the patent in suit. This view is also supported by the ruling in case ORD 9825/2024. argued that the infringing product would not infringe the patent in suit because the infringing product would not "reproduce all the features of claim 1" of the patent in suit. The Court stated: "However, it is a matter of preserving evidence at an early stage of the proceedings. The Court rightly considered that the applicant had provided sufficient available reasonable evidence of the alleged infringement against [rekvisitus] by marketing the [stridsproduktet], a very similar product to the [originalprodukt], [rekvirentens] product which embodies the patent at issue." 3.4. On the validity of the patent in suit (points 3 and 4 of the request for re-examination) 3.4.1. The presumption of validity of the patent in suit (point 3 of the request for re-examination) The Respondent's argument that there is no presumption in favour of the validity of the patent in suit is disputed. A strong presumption of the validity of a granted patent applies particularly in cases of provisional measures such as preservation of evidence and preliminary injunctions. This is confirmed by the following decisions of the Court of Justice:2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 55 1. ORD 500982/2023 of 14 June 2023, issued by the Italian local division in Milan of the Court of First Instance of the Unified Patent Court (English translation via the Deepl tool attached as Annex 61). 2. ORD 587064/2023 of 14 November 2023, delivered by the French local division in Paris of the Court of First Instance of the Unified Patent Court (Annex 62). 3. The ORD 9825/2024 of 1 March 2024 presented as Appendix 60 In connection with the request reconsideration of the order authorising the execution of evidence preservation, which was the subject of ORD 9825/2024, the petitioner in the case challenged the patent in suit and claimed that the patent in suit lacked novelty and inventive step. The Court found in the case that since the patent in suit was "in force and there are no pending proceedings challenging its validity", the patent in suit should be considered valid, and the Court found that there was "no reason for the Court to examine further the validity of the patent in question at this stage of the proceedings". Therefore, it is submitted that the Court is not, under either the UPC Agreement or the Rules of Procedure, authorised to rule on the question the validity of a patent in suit, including the scope of the validity of the patent in suit, during proceedings for the preservation of evidence. The presumption of validity of a patent in suit, especially in cases of provisional measures, also follows from Danish case law, including Østre Landsret's ruling of 15 December 2023 in the consolidated cases BS-5667/2023-OLR (Biogen International GmbH and Biogen Denmark A/S v Viatris ApS), BS-7310/2023-OLR (Sandoz A/S v Biogen International GmbH and Biogen Denmark A/S and BS-27713/2023-OLR (Sandoz A/S v Biogen International GmbH and Biogen Denmark A/S). It is therefore argued that since the patent in suit is in force and that no oppositions have been filed against the patent in suit, the Court must assume that the patent in suit is valid as issued. Alternatively, it is argued that there is a presumption that the patent in suit will at least be maintained in limited form, cf. section 3.4.2 below. 3.4.2. The news items presented (points 4.1 and 4.2 of the request for reconsideration) The requester has cited an earlier version of the requester's hybrid generator, which differs from the patented hybrid generator. The previous version has two working options, which consist of respectively: - inverter mode where power is drawn via inverter and where this power is gridlike; and - boost mode, where the motor works in series with the inverter for peak loads. This contributes to both the motor and inverter directly to the output during peak loads. This is supported by B1-B3, which describes these two modes, and C1-C2, where explains (10:20- 10:40): "So, the other part we have, if I'm listing the benefits and all, it's very clean power because we run the inverter power 100%, like an ups. The reason we have tested both, we can run the power through the inverter and do a power boost."2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 56 In other words, explains that the machine has an inverter mode and a boost mode. then explains that there are problems with boost mode, such as not getting "grid-like" power. Then explains the advantages of inverter mode over boost mode and thus the optimal use of the presented hybrid generator. said problem with boost mode is exactly what patent EP4238202B1 solves with the technical features below: "wherein the mobile hybrid generator is configured such that 1) the grid-like AC power output is provided only from the rechargeable energy storage unit via the inverter unit, and 2) the output from the primary energy source is only used to charge the rechargeable energy storage unit, both during normal mode operation, having normal mode power requirements, and during peak power operation, having peak power requirements," The previous version of the applicant's hybrid generator has the described features 1) and 2) during "normal mode operation" but not during "peak power operation", which corresponds to the mentioned "boost mode". In the requirements matrix on page 8, second to last row, Rekvisitus writes "It is clear from Appendix C1 that the above applies to both peak power and nominal load. Peak power is, at 7:30-7:40, mentioned to be around 180 kW for a few seconds, while the nominal load, at 11:20-11:35, is mentioned to be significantly lower, and that the motor should only be large enough to handle the nominal load. These therefore correspond to peak power operation and normal mode operation respectively." This is not correct and the requester forgets that both 1) and 2) must be present for both peak power operation and normal mode operation. At 7:30-7:40 it is described that peak power is 180 kW, but it is not mentioned which devices contribute to peak power. In light of the entire presentation, it is clear that this is boost mode with both motor and inverter power. 11:20-11:35 does not describe that the rated load is significantly lower than peak power. states: "we don't want a generator that is big enough for the total load". There is nothing in the presentation to support that the total load is the peak load described in the patent in suit. Furthermore, in 11:20-11:35 of the presentation describes another embodiment of a hybrid generator where the batteries are a buffer for the engine: "the secondary problem is the weight is a problem we don't want a generator that is big enough for the total load or even half we need maybe one that is one third for only to cover the nominal load over time the rest the battery is the buffer." In the quote, describes that the batteries are a buffer for the engine power, i.e. the energy from the batteries is only used when the load exceeds the nominal load - this is completely opposite to the subject of the patent in suit, which describes "the output from the primary energy source is only used to charge the rechargeable energy storage unit".2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 57 In summary, it follows from the above that claim 1 of the patent in suit differs from C1 in that C1 does not describe the following features: wherein the mobile hybrid generator is configured such that 1) the grid-like AC power output is provided only from the rechargeable energy storage unit via the inverter unit, and 2) the output from the primary energy source is only used to charge the rechargeable energy storage unit, both during normal mode operation, having normal mode power requirements, and during peak power operation, having peak power requirements, the mobile hybrid generator system characterised in that the at least first primary energy source is dimensioned to the normal mode power requirements, i.e. much smaller than for the peak power requirements." Thus, the patent-in-suit is new compared to C1-C2, even if combined with B1-B3. It is noted that the Petitioner has only cited A1-A2 and D1 without using them in an attack on the claims of the patent in suit. For the sake of good order, it is submitted that claim 1 of the patent in suit prima facie differs at least from A1- A2 and D1 by the above technical features. Therefore, none of the cited documents A1-D1 are anticipating patentability according to Art. 52 EPC. Subsidiary set of claims If, despite the above, the Court finds that there was a disclosure or combination of disclosures that anticipated the patentability of claim 1, MPU 1000, MPU 2000, MPU 3000 will still infringe several of the dependent claims as stated in the request for evidence. A combination of claim 1, claim 14 and part of claim 15 describes that the first primary energy source comprises a DC voltage generator for generating direct current, wherein the DC voltage generator is driven by an internal combustion engine and charges the batteries. Reference is made to the alternative set of requirements with amendment markings, which is presented as Appendix 63. None of the patent specifications cited during the European proceedings or the counterclaims filed by the respondent describe a hybrid generator with an internal combustion engine driving a DC voltage generator to produce direct current only for charging batteries. In C1, 14:25-14:35, explains that the solution described is not bound to 50 Hz or 60 Hz: "Out of that, we are not bound to the 50hz or 60hz on the engine, meaning 1500 RPM is not often the best choice for a motor to run on." It is thus clear from C1 that the solution described includes an alternator that generates AC power. Thus, the subsidiary set of requirements further differs from C1-C2 by containing the following features:2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 58 "wherein the at least first primary energy source comprises at least one DC voltage generator, such that the output from the first primary energy source is DC power, and wherein the DC voltage generator is driven by a combustion engine." In continuation hereof, it is submitted that in the event that the Court in these proceedings, despite what has been stated in section 3.4.1, finds that claim 1 of the patent in suit as issued cannot be upheld, the order to preserve evidence must be upheld with the necessary amendments, because it is presumed that the patent will continue to be valid in the limited form. As it also appears from the request reconsideration, the combat products have DC motors. Thus, the war products will infringe the subsidiary claim set, cf. the following claim matrix: Subsidiary claim 1 MPU 1000/2000/3000 combat products Pull present ? A mobile hybrid generator system for providing grid- like AC power output to a load at off-grid locations, References 1* and 3* show a hybrid generator system pulled by a car. Reference 2* mentions that the MPU 1000 is "Super Mobile, lifting points for crane, fork channels, fork channels, or trailer tow with B licence". Reference 2 mentions "24 kVA AC out" which is a grid-like AC output.A grid-like AC output is technically necessary for the hybrid generator system to power all common electrical devices, as electrical devices are designed for specific AC outputs. Yes, you can the hybrid generator system comprising a housing accommodating: Reference 2 refers to "the design follows the MPU 2000/3000 family". Reference 4* shows in the first row of the table that each MPU has a trailer and a house, see picture and "Unit size" specifications. Yes, you can - a rechargeableelectri cal energystorage unit, such as abattery, configured toprovide a DC poweroutput Reference 2 mentions a 24 kWh LTO battery; LTO batteries are specifically mentioned several times in EP4238202, see [0026], [0031], [0049] and claim 6 (lithium-titanate battery unit)]. Yes, you can - at least a first primaryenergy source, suchas a combustion engine, Reference 2 mentions 380 L diesel tank. Yes, you can2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 59 for chargingthe rechargeableenerg y storage unit,and In addition, the "compact Stage V" engine from Cat[erpillar] is mentioned. Cat is a well-known manufacturer of diesel engines. See the link below for an example of a Stage V diesel engine from CAT: www.cat.com/en US/products/new/powersystems/industrial/in https://dustrial- diesel-power-units/118940.html (Appendix 59). - an inverter unitconfigured forconverting the DCpower output from therechargeable energystorage unit to the gridlike AC power output, Reference 1 - mentions a 144 kVA inverter nominal output and 215 kW peak performance. Reference 4 states that the MPU 3000 has a nominal kVA of 144 kVA and a peak performance of 216 kW. Thus, reference 1 shows an MPU 3000. Reference 2 is MPU 1000 and the mentioned values 24 kVA AC out and 45 kW match the table in reference 4 Yes, you can wherein the mobile hybrid generator is configured such that 1) the grid-like ACpower output isprovided only from therechargeable energystorage unit via theinverter unit, and According to reference 2, "24 kVA AC out" is provided, i.e. the MPU 1000 provides 24 kVA AC. It is most likely that the grid-like AC power is only provided by the battery and inverter, because an alternative where the diesel engine also contributes to the grid-like AC power would require the diesel engine to operate at a correct speed AND in phase with the inverter. This would not only be a complicated solution, but it would also lower the efficiency of the diesel engine against the wishes of HGsystems. Yes, you can 2) the output from theprimary energy source s only used to charge the rechargeable energy storage unit, Reference 2 mentions that the Stage V engine from Cat[erpillar] is responsible for charging. It is clear from the references that the hybrid system is particularly efficient. It is only possible for a diesel engine to be efficient at certain engine speeds. If the diesel engine (primary energy source) is used to directly supply network-like alternating current, a 4-cylinder diesel engine must operate at 1500 rpm, but a typical diesel engine is not efficient there. See EP4238202 - [0022], line 5-9: "the engine + generator is connected to the load, 50 Hz requires an engine speed of around 1500 RPM with a four pole generator. But a typical diesel engine does not operate efficiently at 1500 RPM." Any other configuration will result in a less efficient mobile hybrid generator. Yes, you can2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 60The principle of the patent was developed by EP4238202. It is therefore highly likely that it has been carried over to new companies, as the only way to improve fuel efficiency by ensuring that the engine operates at the most energy-efficient rpm. - both during normalmode operation,having normal modepower requirements,and during peak poweroperation, having peakpower requirements It is clear from reference 4 row three that each MPU has a peak KW [Peak power] and a Nom, kVA [Nominal], which correspond to peak power operation and normal mode operation respectively. Yes, you can the mobile hybrid generator system characterised in that the at least first primary energy source is dimensioned to the normal mode power requirements, i.e. much smaller than for the peak power requirements According to reference 4, the MPU 1000 has a charging power of 12.5 kW and the peak power is 45 kW. This means that the peak power is 3.6 times greater than the charging power of 12.5 kW. Yes, you can wherein the at least first primary energy source comprises at one DC voltage generator, such that the output from the Reference 2 mentions 380 L diesel tank. Reference 2 refers to the "compact Stage V" engine from Cat[erpillar]. Cat is a well-known manufacturer of diesel engines. Appendix 44 shows an exploded view of HGsystem's hybrid generator, showing a Caterpillar engine, which can also be seen on CAT's website: www.cat.com/en US/products/new/powersystems/industrial/in https://dustrial- diesel-power-units/118940.html (Appendix 59) Yes, you can2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 61 wherein the DC voltage generator is driven by a combustion engine. Reference 2 mentions 380 L diesel tank. In addition, the "compact Stage V" engine from Cat[erpillar] is mentioned. Cat is a well-known manufacturer of diesel engines. See the link below for an example of a Stage V diesel engine from CAT: Yes, you can www.cat.com/en US/products/new/powersystems/industrial/in https://dustrial- diesel-power-units/118940.html (Appendix 59) Consequently, in the alternative to the claim that the Court's order the preservation of evidence should be upheld, it is submitted that the order should be amended in accordance with the above. 3.5. Conditions for securing evidence in relation to individual subjects (point 7 of the request for reconsideration) 3.5.1. HGSystem In the request for reconsideration, it is not disputed that HGSystem is involved in at least some of the activities in relation to the warheads that the applicant has described in its request for preservation of evidence. It is therefore not disputed that the petitioner's request is properly directed against HGSystem if the Court finds that there is reasonably available evidence support that the infringing products constitute infringement of the patent in suit. 3.5.2. Infotech Concept, HGSystem Holding, Infotech Holding and The other subjects are primarily involved in the case for the following reasons: - - Prior to submitting the evidence request, the requester has no opportunity to familiarise himself with which of the five subjects, such as the PCs located at the address, formally belong to. - - There is a reasonable assumption that Infotech Concept and are personally and directly involved in the offences in question. It should be noted that this case only concerns the question securing evidence of the subjects' possible involvement in commercial activities in relation to the combat products. Is there2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 62 there is no such evidence in relation to one or more of the subjects, there is nothing to disclose to the requester. Is the involvement of Infotech Concept, HGSystem Holding, Infotech Holding and unjustified, it would set a precedent that would provide an easy way for infringers of patent rights to circumvent the possibility of conducting evidence preservation, which would undermine the purpose of the remedy in Article 60 of the UPC Agreement. In the petitioner's clear view, this cannot be assumed to be the intention. It is therefore submitted that the condition laid down in Rule 192(2)(c) of the Rules of Procedure is satisfied. During the execution of the preservation of evidence, no information emerged that gave reason to assume that material concerning the offences in question or PCs at the address belonged to HGSystem Holding or Infotech Holding. The claimant therefore found no reason include these companies as defendants in the subsequent main proceedings. However, the fact that the two holding companies are not parties to the main proceedings does not mean that the evidence protection proceedings against these companies have been wrongful. 3.6. Rekvisiti's claim for compensation for unlawful interference (point 10 of the request for reconsideration) The Respondent appears to argue that the mere fact that no main proceedings have been brought against HGSystem Holding or Infotech Holding means that the Applicant is liable for damages and must be ordered to pay legal costs to the parties concerned. With reference to the above, it is disputed that this is the case. In addition, it is claimed that it is not documented by the respondent what loss and legal costs the two holding companies may have independently incurred as a result of the securing of evidence..." Pleading dated 8 November 2024 from the petitioner: "... 2. About the infringement of the patent in suit In its pleading, the respondent states that the products in suit contain a common DC bus which has the function of supplying direct current from the DC generator, which is driven by the combustion engine, to both the battery and the inverter. Thus, according to the petitioner, there is no infringement of the patent in suit, which describes that the combustion engine only supplies power to the batteries and that only the batteries supply power to the combustion engine. The Appellant seeks to document the existence of the described solution where the DC bus supplies direct current to both battery and inverter by submitting Appendix Q (table with pictures and descriptions of a hybrid generator) and Appendix R (pictures of the hybrid generator in question). The Appellant does not state whether the hybrid generator shown in Annexes Q and R is a model MPU1000, MPU2000 or MPU3000.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 63 Nor has it been explained when the example of the hybrid generator shown in Appendix Q and R was built, including whether it was built before or after the date on which the evidence was obtained. It should be noted that further development of the MPU1000, MPU2000 and/or MPU3000 models made after the evidence was obtained is not the subject of this case. Appendix 13 contains a printout from the HGSystems website on 10 August 2024 with data for the combat products (models MPU1000, MPU2000 and MPU3000). Following the petitioner's pleading of 22 October 2024, made two additional LinkedIn posts on 2 November 2024 (Appendix 64) and 4 November 2024 (Appendix 65). In the post in Appendix 64, describes a Hybrid generator with 300 kW peak and 180 kVA nominal from the batteries. In the post in Appendix 65, provides further details about the MPU 3000 with 300 kW peak, which he describes as "completely newly developed", as well as further details about the newly developed MPU3000. The stated peak power of the newly developed MPU3000 is thus well above the stated peak power of 216 kW for the MPU3000 model that is the subject of this case. It must be assumed that this increased peak power is due to the fact that both the battery and the DC generator supply power directly to the inverter as described in the requisition process document and Appendices R, Q and S, as this technique makes it possible to achieve extra high power. Exhibits Q and R were prepared at the same time as posting about the newly developed model MPU3000. The applicant is therefore of the opinion that the hybrid generator model in Appendix Q and R is this newly developed MPU3000, which is not the subject of the case. The statement from in Appendix U states the following, which is not supported by any evidence: - "The term "the Contested Products" is used in this declaration to refer collectively to the HGSystems hybrid generators called MPU1000, MPU2000 and MPU3000, all three of which, with respect to the elements of claim 1 of EP 4 238 202 B1 (the "Contested Patent") described below, are constructed and function in the same manner." - "As stated above, this DC coupling is technically the same for all the Combat Products. In addition, the Combat Products are not generally identical, for example, they do not use the same type of motor, which is why the control of the Combat Products is different." As the requisitioner has built the combat products himself, it must be assumed, provided that what is stated is correct, that the requisitioner is in possession of documentation for what is stated but has deliberately chosen not to present the documentation However, it is the petitioner's opinion that the above cannot include the infringing products that are the subject of the case, as the motor in the described solution is coupled to the external load, which makes the solution less efficient and thus unfavourable compared to the solution described in the infringing patent.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 64 This is also supported by paragraph [0011] of the description in the patent in suit, which states: "As long at the generator + When a power requirement is created by the load, the generator must be able to react to it." Attached as Appendix 66 is a written witness statement from which confirms that an engine coupled directly to the load does not run efficiently. The statement states that "In the above solution, the internal combustion engine is coupled to the load and thus cannot be operated in the most efficient mode in the same way." The motor cannot avoid being affected by fluctuations in load, whereby the motor will operate less efficiently. If the batteries are close to being discharged, the batteries will not be able to compensate for the motor and the motor will experience a very high load. Therefore, the solution described by the requisitioner does not harmonise with the statements in the requisitioner's marketing of the combat products that these have a significantly better fuel economy, cf. for example statement in the article in Erhverv Fyn (Appendix 39), where it is stated that the hybrid generator "becomes more autonomous, up to 20% better fuel economy than the previous one". Furthermore, notes in the declaration that the seasons in the pictures of the warfare products in appendices Q and R change from picture to picture and that pictures 1 and 7 must have been taken in autumn, after the evidence inspection was performed. As the hybrid generator is not finished, it is concluded that the machine was constructed after the evidence inspection. It should also be noted that not all necessary features for the requisiti hybrid generator are shown in appendices Q and R. On pages 6 and 9 of appendix Q, an inverter connection (red wires) to DC bus bar #2 is shown, but none of the pictures show the connection between the batteries and DC bus bar #2. In addition, the appendices do not contain a picture of an inverter connection (black wires) to DC bus bar #1. Based on the above, the example of a hybrid generator shown in appendices Q and R appears unfinished and manufactured for the purpose of showing a solution that does not infringe the patent in suit. However, there is no documentation that the solution shown and described is technically identical to the infringing products. 4. About the validity of the patent in suit In its pleading, the Respondent claims that the patent in suit is not valid in relation to GB 2434928 A1 (Annex F), US 20140277791 A1 (Annex L), and GB2493631A (Annex N) and refers in this connection to the claim matrices for GB 2434928 A1 (Annex G) and for US 20140277791 A1 (Annex L) In this connection, the applicant points out that the three cited patent documents were all known to the EPO and were thus included in the assessment of the patentability of the invention. It is submitted that in interim measures such as the present case, the Court not able to overrule the EPO's assessment of patentability against the three defendants and thus set aside the patent in suit as invalid and that the presumption of validity of the patent in suit must be upheld already on this basis. Nevertheless, the petitioner shall make the following comments on the defences raised:2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 65 GB 2434928 A1 ("GB 928"), Annex F GB 928 (Annex F) was in the initial stages of the application process assessed by the EPO case officer as only to be relevant for requirement 1 (X-counterpart) and requirement 14/15 (Y-counterpart), see Annexes H and I. Claim 1 was narrowed after the initial stages with several technical features that led to the issuance of the patent in suit. The description in GB 928, page 6, lines 2-6, mentions the embodiment shown in Figure 1, where the motor charges the batteries and provides power to the inverter. Thus, the patent in suit differs from GB 928 at least in that GB 2434928 does not describe the feature "the mobile hybrid generator system characterised in that the at least first primary energy source is dimensioned to the normal mode power requirements, i.e. much smaller than for the peak power requirements." US 20140277791 A1 (US 791), Annex L It is not disputed by the petitioner that the following solution described in the petition differs from the patent in suit: According to resikvitus, the above solution corresponds to the solution described in US 791, see the following figure in the pleadings of 29 October 2024, page 15, where blue and red colours are plotted:2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 66 The Respondent states the following in the pleadings: "The Contested Products do not operate in the manner emphasised by the Plaintiff above. In the Contested Products, power is supplied to the inverter both from the battery and from the engine/generator [emphasis added]. The structure of the combat products is that an internal combustion engine drives a direct current (DC) generator. This generator supplies direct current to a common through DC bus. The batteries and inverter are also connected to this DC bus. Therefore, there is a direct coupling between the DC generator and the inverter. This means that under normal and peak loads, the motor can simultaneously supply power for both external loads via the inverter and for charging the batteries." Thus, claim 1 of the patent in suit differs from US 791 at least in that US 791 does not contain the pull: wherein the mobile hybrid generator is configured such that 1) the grid-like AC power output is provided only from the rechargeable energy storage unit via the inverter unit, and 2) the output from the primary energy source is only used to charge the recharge-able energy storage unit, both during normal mode operation, having normal mode power requirements, and during peak power operation, having peak power requirements GB2493631A (GB 631), Annex N GB 631 was assessed by the European case officer to be the closest prior art. The petitioner agrees with this.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 67 GB 631 was studied in detail by the EPO examiners, which is evident from Appendices O and P. The EPO examiners also assessed that a skilled person would not combine GB 631 with either GB 928 or US 791 to arrive at a hybrid generator as described in the patent in suit. In the respondent's pleading the following is stated: "It does not appear from the case history what the examiner used as a basis for recognising the inventive step of the issued claim 1." However, this is not correct, as can be seen in the caseworker's email dated 31 May 2024 (Appendix P, page 5): The inventive step of the patent-in-suit is based on the fact that a smaller dimensioned motor is more efficient and that the separation of the motor from the load enables a smaller dimensioning of the motor. Furthermore, it would not be obvious to combine GB 631 with the video in Exhibit C1, as the solution in C1 includes a boost mode where the generator is in series with the inverter. This is explained in the petitioner's previous pleading dated 22 October 2024. In paragraph 85 of the pleadings, reproduces the statement in Exhibit C1 as follows: "In Exhibit C1 (at 11:20-11:35), which relates to a hybrid generator, it is specifically mentioned that, in order to save weight, the engine should be dimensioned so that it can only cover the nominal load. US 791 (as described above) mentions in paragraph [0040] that costs can be saved in both production and use by using an engine that is sized only for the average load rather than the maximum load." The quote at 11:20-11:35 in Appendix C1 is as follows: "the secondary problem is the weight is a problem we don't want a generator that is big enough for the total load or even half we need maybe one that is one third for only to cover the nominal load over time the rest the battery is the buffer." In the quote, describes that the batteries are a buffer for the engine's power, i.e. the energy from the batteries is only used when the load exceeds the nominal load - this is directly opposite to the solution in the patent in suit, which describes "the output from the primary energy source is only used to charge the rechargeable energy storage unit". quote at 11:20-11:35 thus harmonises with the second half of paragraph 85 of the pleadings, which refers to US 791, because in US 791 motor power is fed to both the inverter and the batteries, so that the batteries are a buffer for the motor. The embodiment described by in 11:20-11:35 in C1 was therefore a solution similar to US 791 (although less energy efficient than the petitioner's later patented solution).2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 68 As the petitioner itself states that the solution described in Appendix Q differs from the patent in suit, the petitioner must agree that the solution in US 791 differs from the patent in suit. Based on the above, it can be concluded that if a skilled person combined GB 631 and C1, the resulting hybrid generator would have a boost mode and the engine would supply power directly to the inverter, which falls outside the solution described in the patent in suit. 4. The evidence report must be handed out As stated in the petitioner's email of 7 October 2024, the petitioner's request for reconsideration of the court's order to preserve evidence does not have a suspensive effect in relation to the delivery of the evidence preservation report. Rekvisiti's two pleadings in this case are without solid evidence that the infringing products technically function as postulated by the Respondent, which only confirms the necessity that the evidence report must be provided immediately. The Respondent's pleadings confirm that only through disclosure of the evidence report can the presumption of infringement of the patent in suit be confirmed or denied. It follows from the order of 21 September 2023 in case UPC-CFI-329/2023 from the local division of the Court of Justice in Brussels that the evidence report must be handed over as soon as it is ready. It cannot and should not be in the respondent's favour that (under threat of coercive fines) has refused to hand over all codes to the IT expert. As already mentioned, the IT expert must therefore submit a preliminary evidence report based on the material at his disposal. The fact that the order in case UPC-CFI-329/2023 concerned information about products that were publicly available at a symposium was only relevant to the question of imposing an obligation of confidentiality, but not to the question of how quickly the evidence report should be provided. In the request for reconsideration of the court's order, the petitioner has already that a duty of confidentiality be imposed on the persons who have learnt confidential information, which the petitioner has not objected to. The fact that the secured material may contain confidential information cannot therefore justify not handing over the evidence report immediately. If the court does not grant the petitioner's request for immediate disclosure of the evidence report concerning all material covered by the petitioner's claims, the petitioner claims, in the alternative, that the parts of the evidence report concerning the technical construction of the infringing products must be provisionally disclosed so that the existence of the infringement of the patent in suit can be clarified. As stated in the petitioner's email of 7 October 2024, the petitioner's request for reconsideration of the court's order to preserve evidence does not have a suspensive effect in relation to the delivery of the evidence preservation report. Rekvisiti's two pleadings in this case are without solid evidence that the infringing products technically function as postulated by the Respondent, which only confirms the necessity that the evidence report must be provided immediately. The Respondent's pleadings confirm that only through the disclosure of the evidence report can the presumption of infringement of the patent in suit be confirmed or denied.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 69 It follows from the order of 21 September 2023 in case UPC-CFI-329/2023 from the local division of the Court of Justice in Brussels that the evidence report must be handed over as soon as it is ready. It cannot and should not be in the respondent's favour that (under threat of coercive fines) has refused to hand over all codes to the IT expert. As already mentioned, the IT expert must therefore submit a preliminary evidence report based on the material at his disposal. The fact that the order in case UPC-CFI-329/2023 concerned information about products that were publicly available at a symposium was only relevant to the question of imposing an obligation of confidentiality, but not to the question of how quickly the evidence report should be provided. In the request for reconsideration of the court's order, the petitioner has already that a duty of confidentiality be imposed on the persons who have learnt confidential information, which the petitioner has not objected to. The fact that the secured material may contain confidential information cannot therefore justify not handing over the evidence report immediately. If the court does not grant the petitioner's request for immediate disclosure of the evidence report concerning all material covered by the petitioner's claims, the petitioner claims, in the alternative, that the parts of the evidence report concerning the technical construction of the infringing products must be provisionally disclosed so that the existence of the infringement of the patent in suit can be clarified..." Reasons given by the Court of Justice According to Article 60(1) of the UPC Agreement, the court may, at the request of the petitioner even before the commencement of the substantive proceedings, order that effective provisional measures be taken immediately to preserve relevant evidence relating to the alleged infringement, provided that confidential information is protected. This requires that the requester has provided reasonably available evidence to support that the patent has been infringed or will be infringed. The rules on preservation of evidence are a tool that allows the right holder to clarify whether an infringement has occurred or the extent of it. The rules on preservation of evidence do not require full proof of infringement for them to be applicable, and according to the wording of Article 60(1), there is no requirement that the applicant must make it probable or be able to establish with high certainty that an infringement has occurred. Thus, there appears to be a relatively relaxed evidentiary requirement for conducting an evidence protection case under the above provision. According to Article 42 of the UPC agreement on proportionality and justice, the Court must treat cases with due regard to their importance and complexity. Thus, a preservation order under Article 60(1) will have to fulfil the general requirement of proportionality that follows from Article 42 of the UPC Agreement.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 70In its decision of 26 August 2024, the Court found that the petitioner had, on the basis of the available evidence, presented reasonably available evidence to support that European patent no. 4 238 202 B1 (the patent in suit) is or will be infringed in Denmark on the premises, In this assessment, the Court particularly emphasised that there was a well-founded presumption that the infringing products from the requisiti (MPU 1000/2000/3000) had to be assumed to contain all technical features in independent claim 1 of the patent, just as it had to be assumed that the infringing products contain features in subclaims 5, 6, 7 and 13. The Court found that the examples of social media posts on Facebook and LinkedIn from that had been reproduced by the applicant further supported the presumption that infringement was taking place or would take place. There was thus a well-founded presumption that infringements had taken place or would take place at the address in question. The appellant has requested the Court to review its order pursuant to Rule 197(3) of the Rules of Procedure. Validity of the patent in suit Rekvisiti has argued that the conditions for preserving evidence are not met, as the patent in suit is invalid due to lack of novelty and lack of inventive step. In this connection, Rekvisiti has referred to the fact that the patent in suit, cf. Article 52(1) and Article 54(2) of European Patent Convention, lacks novelty in relation to patent applications filed prior to the priority date of the patent in suit on 28 October 2020. These are US 2014/0277791 A1 (Annex L) and GB 2 434 928 A1 (Annex F). The applicant has furthermore claimed that the patent lacks inventive step, cf. Article 56 of European Patent Convention, in relation to GB 2 493 631 A (Annex N). The Court notes that it is apparent from the facts of the case that the above 3 patent documents should all have been included in the proceedings before the EPO when assessing whether the conditions for granting the patent in suit were met. There are currently no pending opposition proceedings regarding the validity of the patent in suit. There is thus a clear presumption in favour of the validity of the patent in suit as it has been granted. The Court therefore finds that, based on the possible evidence presented by the respondent during these preliminary proceedings for the preservation of evidence, there is not a necessary basis for concluding that the patent in suit must be considered invalid.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 71 Infringement of the patent in suit The Court finds that the distinguishing feature of the patent in suit is that the energy source - i.e. the energy source The diesel engine - is configured for normal operating load requirements and thus needs to run less than what is known from prior art. Combat products contain this distinguishing feature. In terms of infringement, the question is whether the features of the patent in suit, which consist of the motor only supplying power to the battery and only the battery supplying power to the load via the inverter, are present in the products in suit. It is not disputed by the petitioner that if the combat products actually technically function in the manner now described in the pleadings of the petitioner and use is made of two bus bars, one of which supplies power from the motor/generator to the inverter bypassing the battery, there is no patent infringement. It must therefore be considered recognised by the petitioner that the petitioner does not at the present time basis has demonstrated that in the infringing products it is only the battery that supplies power via the inverter. Thus, the applicant has not, on the present basis, documented infringement. Rekvisiti has stated that, on the present basis, it must be considered more likely that the products in dispute do not infringe the patent in suit than that the opposite should be the case. In response, the petitioner has argued that the preservation of evidence was requested precisely in order to Obtain unavailable evidence so that you can subsequently document this infringement. In this connection, the claimant has further argued that the description of the combat products from the requisitioner is not consistent with the stated energy efficiency of the combat products and that the requisitioner has not provided the documentation that the requisitioner must be deemed to be in possession of. In this connection, the claimant further argues that the products of war must be considered to been remodelled after the initiation of the evidence protection proceedings. and have in their witness statements confirmed the description of the war products by the defence. It follows from the witness statement from that fundamental mechanical development and rebuilding has taken place on the machine MPU3000 since 30 August 2024.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 72 The Court does not find on the present basis, notwithstanding the witness statements of and - also with reference to the peculiar course of events described by the bailiff's court during the preservation of evidence at the petitioner's address on 30 August 2024 - to be able to reject the petitioner's argument that after the initiation of the preservation of evidence proceedings a conversion of the war products has taken place. Therefore, in accordance with the relatively relaxed standard of proof for conducting an evidence- protection procedure under Article 60(1) of the UPC Agreement, the Court continues to find that the petitioner has provided sufficient evidence to support that the patent in suit has been infringed by the respondent's infringing products. The parties involved in the evidence preservation case As a preliminary point, the Court recalls that the rules on the preservation of evidence are a tool enabling the right holder to ascertain whether an infringement has occurred or the extent thereof. It has not been disputed by the respondent that the petitioner's request for preservation of evidence has rightly been directed against HGSystem ApS if the Court finds that there is reasonably available evidence to support that the infringing products constitute an infringement of the patent in suit. However, Rekvisiti has argued that the other parties - HGSystem Holding ApS, Infotech Concept ApS, Infotech Holding ApS and personally should never have been involved in the evidence protection case. The Court notes that it is undisputed that Infotech Concept ApS was the registrant of the domain hgsystem.dk. The Court further notes that all 4 companies The Court further finds that the examples of posts on the social media Facebook and LinkedIn from presented by the applicant to a certain extent substantiate that there could be a close intermingling of the parties in question at the applicant's premises, and that it could therefore not be deduced in advance with which party potentially relevant evidence was located. Against this background, the Court finds that, prior to the request for preservation of evidence, the applicant did not have the opportunity to familiarise itself with which of the parties involved with the respondent had relevant possible evidence of a possible infringement of the patent in suit. Thus, the Court finds that the applicant has adequately explained the reasons that necessitated the involvement of these parties in the request for the preservation of evidence.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 73 In view of this, the Court finds that reasonably available evidence has been presented by the applicant to support that all these parties may have participated in the infringement or threatened infringement of the patent in suit in accordance with Article 60(1) of the UPC Agreement. Consequently, the Court considers that it cannot be considered contrary to the principle of proportionality that the above parties are covered by the evidence preservation order. It cannot lead to a different assessment that the petitioner has chosen not to include HGSystem Holding ApS and Infotech Holding ApS in the subsequent main proceedings. Conclusion In the light of the foregoing, the Court, in accordance with Article 60(6) of the UPC Agreement and Rule 197(4) of the Rules of Procedure, confirms the earlier order of 26 August 2024. The evidence report prepared by the appointed independent IT expert will be provided to the representatives of the parties to the case. The representatives are obliged to keep secret any trade secrets and other confidential information that may come to their knowledge in this connection. The decision on costs is postponed until the main proceedings. Decision of the Court of Justice The order of 26 August 2024 of the Local Division of the Court of Justice in Copenhagen granting the applicant's request regarding European patent no. 4 238 202 B1 for immediate preservation of evidence and inspection of property without prior notice of requisition pursuant to Article 60 of the UPC Agreement and Rule 196 of the Rules of Procedure is upheld. The report prepared by the appointed independent IT expert will be provided to the representatives of the parties to the case. The representatives are obliged to keep secret any trade secrets and other confidential information that may come to their knowledge in this connection. The report can only be used as evidence in the main proceedings. The decision on costs is postponed until the main proceedings. Pursuant to Article 73 of the UPC Agreement and Rule 220 of the Rules of Procedure, the Respondent may, within 15 days of being notified of the order, appeal it to the Court of Appeal.2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com 74 Name and signature Agergaar d Digitally signed by Peter Juul Agergaard Date: 2024.12.19 08:49:30 +01'00' Peter Juul Agergaard DETAILS OF THE ORDER: Main file reference: ACT 47484/2024 UPC number: UPC CFI 492/2024 Type of procedure: Application for preserving evidence pursuant to RoP 19 Peter Juul2024-12-19 LD Copenhagen UPC CFl 492-2024 App 54055-2024 ORD 59378-2024 en-GBDeepL machine translation provided by www.veron.com

Key Holdings

• Not explicitly stated in the provided text. The document ends mid-sentence within the arguments of one of the parties, and the court's actual rulings are missing.

Tags

• Evidence
• Ex Parte Order
• Infringement
• Inventive Step
• Mechanics
• Novelty
• Patent Validity
• Proportionality

Related Rules

• Rule 1 – Application of the Rules and general principles of interpretation
• Rule 1 – Application of the Rules and general principles of interpretation
• Rule 1 – Application of the Rules and general principles of interpretation
• Rule 1 – Application of the Rules and general principles of interpretation
• Rule 1 – Application of the Rules and general principles of interpretation
• Rule 1 – Application of the Rules and general principles of interpretation
• Rule 1 – Application of the Rules and general principles of interpretation
• Rule 1 – Application of the Rules and general principles of interpretation
• Rule 3 – Power of staff of the Registry and a sub-registry to perform functions of the Registry

Related Cases

• UPC CFI 80/2024 (ACT 9679/2024) – Vahterus Oy v Euro Heat doo
• UPC CFI 492/2024 (ACT 47484/2024) – Hybridgenerator ApS v HGSystem ApS, HGSystem Holding ApS, Infotech Concept ApS, Infotech Holding ApS, Rune Eilertsen
• UPC_CFI_560/2024; UPC_CFI_889/2025 – Hybridgenerator v HGSystem