The decision is appealable. The NanoString decision offers a timely example on how the UPC may approach the question of inventive step of European patents. We discuss the possible ramifications of this approach below, and note that UPC courts have the choice of following national or EPO style approaches to the question of inventive step, and may even develop their own approach within the framework of the Unitary Patent Court Agreement.
The claims are directed to methods for detecting analytes in a sample. The validity of the priority date was not challenged, and no opposition was filed against the patent at the EPO.
This part of the decision emphasises the separate jurisdictional nature of the UPC and national courts, and an overriding desire for procedural efficiency.
The subject matter of the Patent had partly been considered in related proceedings on EPB1, a patent based on a second generation divisional application of the Patent. Section A starting point is realistic if its teaching would have been of interest to a skilled person who, at the priority date of the patent at issue, was seeking to develop a similar product or method to that disclosed in the prior art which thus has a similar underlying problem as the claimed invention [β¦].
There can be several realistic starting points. Paragraph [ However, the UPC approach to inventive step as discussed at point The decision does states in point At section The difference in order can perhaps be understood as a matter of emphasis or focus, which for subjective questions like inventive step may conceivably have an effect.
