UPC delivers a landmark preliminary injunction in the life sciences sector

In a landmark ruling the local division of the Unified Patent Court (UPC) in Munich issued a preliminary injunction against NanoString Technologies based on European Patent 4 108 782 B1, successfully asserted by 10x Genomics and President and Fellows of Harvard College (licensee and patentee).

This ruling is significant for several reasons. Firstly, it marks the first UPC decision regarding a European patent with unitary effect (i.e. a Unitary Patent) within the life sciences sector. Additionally, it is the first case where a division of the UPC has considered a preliminary injunction application in a substantive hearing involving both parties. The ruling sets a benchmark for the UPC's operation and decision-making in life sciences litigation cases, serving as a crucial example of how the UPC handles such cases.

The preliminary injunction, issued by a panel of four judges with both legal and technical expertise, prevents NanoString from selling or providing services relating to its CosMx Spatial Molecular Imager (SMI) products for RNA detection, a technology used to identify RNA in living cells, in all 17 EU Member States that have ratified the UPC.

The complexity of this case is evident, with the four judges taking two weeks to deliberate following the hearing, which itself involved the parties discussing novelty, inventive step, and added matter in detail. Additional considerations involved infringement, because the court identified two possible claim interpretations – only one of which would have been infringed, and whether there had been an unreasonable delay in seeking the preliminary injunction.

Given that the UPC is still in its infancy, life sciences businesses will surely be watching closely to see how the UPC operates and how its case law develops. Early cases such as this will likely be influenced by the legal backgrounds and experiences of local judges. The local division in Munich is expected to be a popular venue for UPC litigation, and it is already taking a central role in shaping early case law across participating states.

NanoString expressed its intention to appeal the ruling, which will be heard before the UPC Court of Appeal in Luxembourg.

With a decision by the UPC on a preliminary injunction request related to European Patent 2 794 928 due on 10 October 2023, it seems that the dispute between 10x Genomics and NanoString Technologies is set to shape the early landscape of the UPC.