LD Milan: Patent literature may evidence common general knowledge under exceptional circumstances (UPC CFI 770/2024, UPC CFI 556/2025)
EPG-Rechtsprechung | 07.09.2026
Court docket: LD Milan, Order of 26.05.2026
UPC CFI 770/2024, UPC CFI 556/2025 [EP 3 519 207]
Parties: Pyrelli Tyre v. Sichuan Yuanxing
Contributor: Sebastian Rennebaum
Headnote
1. The Court concurs with the interpretative approach expressed by the EPO Board of Appeal (see Decision T1000/12 of 17 December 2023, T 412/09 of 9 May 2012 et al) according to which it is only in exceptional circumstances that it may be presumed that the patent documentation represents the general knowledge common to a person skilled in the art. Such exceptional circumstances arise, for example, where a body of patent literature provides a coherent picture that a particular technical procedure is generally known. In the present case, there is evidence of the existence of a series of patent documents strictly relating to the specific field of tyres, in which the same technique for the plan view representation of the tread pattern is incorporated, thereby constituting the common general knowledge of a person skilled in the art.
2. The principle of proximity of evidence allows for the shifting of the burden of proof where the party bearing the burden of proof has provided strong indications regarding the fact to be proven (here, the patent holder through photographic reproductions of the defendant’s products) and the opposing party (here, the defendant accused of patent infringement) has privileged access to the documents and information that would allow that fact to be ascertained directly. The Court of Justice has focused on this point in cases where the defendant’s refusal to disclose information within their direct control may compromise the effectiveness of the evidentiary regime, requiring the national court to assess the information asymmetry between the parties (see Judgment of 21 July 2011, Kelly, C-104/10, paragraphs 38 et seq.).
Relevance of the decision
In Pyrelli Tyre v. Sichuan Yuanxing, the Milan Local Division had to deal with the question whether patent literature can evidence common general knowledge (CGK) of the person skilled in the art. The LD Milan adopted the general interpretative approach of the EPO’s Boards of Appeal: only under exceptional circumstances may it be presumed that patent literature is representative of CGK (expressly referring to T 1000/12). Such exceptional circumstances arise, for example, where a series of patent documents in the same technical field provide a coherent picture that a particular technical procedure is generally known. This was decided very similarly in T 412/09 (refer to point 2.1.3), also cited in headnote 1 of the decision.
In the case at hand, this question arose in construing the “tread pattern” (feature 1F) defined in claim 1 relating to a motorcycle tyre, and in deciding whether the claimed invention is sufficiently disclosed (points 6.1 and 5.2 of the decision). The definition included in paragraph [0022] of the patent is that a “tread pattern” is the representation of all the points of the tread band on a plane perpendicular to the equatorial plane of the tyre and tangent to the maximum diameter of the tyre. Defendant argued that the patent in suit did not sufficiently specify how to carry out said “representation”, i.e., how the three-dimensional tyre tread pattern should be represented on a plane, and that different techniques could lead to different measurement results. The Court rejected these arguments. It read the patent as a whole as referring to a planar extension (“development”) of the tread band. As regards carrying out said extension, the LD Milan found that prior art documents D2, D4, and D5, all closely related to the specific technical field of tyres in which the same technique for representing the tread pattern in plan view is incorporated, can serve as evidence of CGK of the skilled person. The LD Milan further held that Defendant had not demonstrated that different representation techniques in fact lead to different or non-comparable measurements.
The LD Milan’s reasoning is notably pragmatic rather than overly academic. Having construed the broad definition in paragraph [0022] more narrowly as referring to a specific planar development or extension of the tyre tread band on the basis of the patent as a whole, the LD Milan did not require proof that every conceivable representation technique would produce identical results. Instead, it relied on the fact that this planar tread band representation is well-known in the relevant technical field and is consistently used in closely related prior art documents. The LD Milan further acknowledged in this regard that Defendant itself used the same flat representation technique in its brochure for the attacked embodiment.