UPC Court of Appeal clarifies approach to claim construction

Background and procedural history

Insulet, the owner of EP 4201327, which concerns an infusion pump for delivering therapeutic liquids to patients, sought provisional measures against two defendants before two UPC Divisions. Insulet initiated proceedings against EOFlow, a South Korean manufacturer of insulin pumps, before the UPC Milan Central Division, and against Menarini, the exclusive European distributor of these insulin pumps, before the UPC Milan Local Division. Both divisions found that the patent was likely invalid for lack of novelty, leading to the rejection of the applications for provisional injunctions. Insulet appealed both orders, which were heard together by the UPC Court of Appeal. During the appeal, a settlement was reached with Menarini, but not with EOFlow.

Court of Appeal decision 

The UPC Court of Appeal took a fundamentally different view from the first instance decisions, which had found the patent more likely than not to be invalid for lack of novelty. 
 
The central issue before the Court of Appeal was the proper approach to claim construction and, in particular, the role of the “person skilled in the art.” EOFlow had relied on the opinion of its expert to interpret the patent and prior art, whereas Insulet did not submit an expert opinion. As a result, the first instance courts had largely adopted the reasoning of EOFlow’s expert. 
 
Crucially, the Court of Appeal clarified that the interpretation of patent claims is a matter of law for the Court, not for party-appointed experts. The Court emphasized that the “person skilled in the art” is a notional legal construct, representing the general specialist knowledge, experience, and abilities customary in the relevant technical field, rather than the knowledge of any particular individual or expert. While expert opinions may be considered, the Court must independently construe the claims, taking into account the understanding of a notional “person skilled in the art.”

Furthermore, claim features must always be interpreted in the context of the claim as a whole, and that the overall context of the invention must not be overlooked.

Key takeaways and implications

This decision underscores that claim construction is a judicial function and the UPC will not simply defer to expert testimony. Parties involved in UPC proceedings should therefore be aware that, while expert evidence may be informative and persuasive, it cannot substitute for the Court’s independent assessment of claim scope and interpretation.
 
The ruling also provides clarity on the concept of the “person skilled in the art,” reinforcing that this is a notional standard ensuring objectivity and consistency in claim interpretation.

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