European UPC Litigation FAQ
What exactly is the UPC?
- The European Unified Patent Court (“UPC”) is an international court set up to adjudicate patent disputes across the participating member countries of the European Union.
- Seventeen countries have elected to participate in the court: Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Portugal, Slovenia, and Sweden.
What did the UPC decide on October 10, 2023?
- The UPC denied a request by 10x Genomics for a preliminary injunction on the ‘928 patent. The court’s ruling highlighted substantial questions regarding both the invalidity of the patent and non-infringement by NanoString.
- NanoString views this decision as supportive of its efforts to overturn an injunction related to the same patent in Germany.
- The ruling does not impact the injunction issued on September 19th with respect to the ‘782 patent, which NanoString has appealed to the UPC’s Court of Appeal in Luxembourg.
What did the UPC decide on September 19, 2023? What does the decision do and not do?
- The UPC granted a preliminary injunction in the 17 UPC member states prohibiting the sale and use of NanoString’s CosMx™ SMI products for RNA detection.
- The ruling impacts the 17 UPC member countries listed above.
- The ruling does not impact NanoString’s legal ability to market or sell the CosMx SMI products for protein detection in these UPC member countries.
- The preliminary injunction ruling has no legal impact on sales and use of CosMx SMI for any purpose anywhere outside of the UPC member countries, including (but not limited to), the United States, UK, non-UPC member countries, and the Asia Pacific regions, including China.
- The preliminary injunction ruling also has no legal impact on sales and use of NanoString’s other products, including GeoMx® DSP, nCounter® systems, and the AtoMx™ Spatial Informatics Platform, anywhere in the world, including the UPC member countries.
Is this injunction permanent?
- No. The preliminary injunction order temporarily blocks NanoString’s ability to market and sell CosMx SMI products for RNA detection within 17 UPC member countries while the case proceeds to a full hearing on the merits.
- We respectfully believe that the court erred and we are appealing the decision to the UPC Court of Appeal in Luxembourg. The appeal will be heard on December 18, 2023.
- The preliminary injunction may be overturned upon appeal or following the full hearing on the merits of the case.
What options do customers have if they are affected by the preliminary injunction?
- We are prepared to support customers in UPC member countries that are affected by this decision and will help them explore options to avoid disruption to their work.
- We encourage customers working in countries affected by the injunction to reach out to their sales representative to ensure a smooth transition.