As reported in our article at the end of 2023, “Preliminary injunctions before the Unified Patent Court: what do we know so far?”, the Munich local division granted the request from 10x Genomics for a preliminary injunction against Nanostring. As part of this decision the division considered several substantive issues in detail, including an assessment of infringement and validity of the patent. The finding at first instance was that the patent appeared to be valid and infringed.

The UPC Court of Appeal has now overturned the granting of this preliminary injunction, allowing Nanostring to return to most European markets. Contrary to the opinion of the Munich local division, the UPC Court of Appeal noted that in their judgment “it is, on the balance of probability, more likely than not that the subject-matter of claim 1 … will prove not to be patentable”. The UPC Court of Appeal thus concluded that there is no sufficient basis for the granting of a preliminary injunction since it is more likely than not that the contested patent would be found to be invalid in the main proceedings.

In this ongoing dispute between 10x Genomics v Nanostring, the UPC Court of Appeal also rejected a request from 10x Genomics to stay the proceedings on the grounds that Nanostring had filed a petition on 04 February 2024 in the US Bankruptcy Court for the District of Delaware to open insolvency proceedings under Chapter 11 of the Bankruptcy Code. Under the UPC Rules of Procedure, the court shall stay proceedings for up to three months if a party is declared insolvent under the law applicable to the insolvency proceedings. However, in this case, the UPC Court of Appeal rejected the request primarily because the Chapter 11 proceedings were not opened until after the oral hearing had taken place before the court in December 2023.

Useful link

• Order 6653/2024, UPC Court of Appeal, 26 February 2024: dycip.com/order6653-upc-coa