Court of Appeal Luxembourg confirms alignment with EPO on mixed-type and computer-implemented inventions

In this decision, the Court of Appeal had first to decide whether the Local Division had been right to refuse provisional measures on the basis that the infringing product likely did not infringe claims 1 and 14 of the patent in suit, which mainly hinged on whether the event data icons in a trend graph fell within the scope of the claimed timeline graph (r. 12, r. 17, r. 57-68). Having found infringement more likely than not, the Court then had to decide whether the patent was more likely than not valid despite added-matter and inventive-step attacks, especially against user-interface features of the claims (r. 70-153). Finally, it had to decide whether provisional measures should be granted, including urgency, necessity, balance of interests, scope of relief, and the admissibility of the Respondents’ cross-appeal on urgency (r. 159-209).

The decision provides useful guidance by the Court of Appeal on when allegedly non-technical features must be considered for inventive step, particularly for presentations of information. It rejected the argument that the user-interface features should be disregarded merely because they could be characterized as non-technical or as a presentation of information. Instead, relying on EPO case law such as COMVIK and G 1/19, the Court held that a claim feature is not excluded from the inventive-step assessment simply because, taken on its own, it might fall under Art. 52(2) EPC. A feature that is non-technical in isolation may still contribute to the technical character of the claimed invention through its interaction with the other claim features, so that the interrelationship and functioning of the claim features must be assessed together (r. 112). Applying this approach, the Court found that the claimed conversion of user-entered events into event data icons, their display on a timeline graph together with monitored glucose levels, and their selection to obtain event details were technical measures producing the technical effect of improved assistance in diabetes control. The fact that the user ultimately decides what to do with the information did not deprive these features of technical character (r. 113 & 114).

On the cross-appeal, the Court held that the Respondents could not challenge only the Local Division’s reasoning on urgency while retaining the favourable result. Under R. 220.1 RoP, only a party adversely affected by a decision may lodge an appeal, and the same requirement applies to a cross-appeal under R. 237 RoP. A cross-appeal is therefore inadmissible if its sole purpose is to alter part of the first-instance reasoning where the operative result was in favour of the party bringing the cross-appeal (r. 208). That was the case here: the Local Division had dismissed Abbott’s application, as the Respondents had requested, and Abbott’s appeal necessarily required the Court of Appeal to consider urgency as part of the assessment of provisional measures under R. 211.4 RoP. The urgency issue therefore could not be made the subject of a separate cross-appeal, which was declared inadmissible (r. 209).

The decision shows, first, that the UPC will not dismiss display or GUI features as irrelevant merely because they involve the presentation of information. Where such features are functionally integrated into a technical system and, through their interaction with the other claim features, improve human-machine interaction, they may contribute to inventive step, in line with EPO practice (r. 112-114). Secondly, the decision confirms a procedural point that is also familiar from EPO appeal practice: an appeal is not a mechanism for challenging only the reasons of a decision where the operative result was favourable. The EPO Boards of Appeal have likewise treated an appeal as inadmissible where the appellant seeks to amend not the decision itself but merely its reasoning (see T 84/02, R 13/22, and EPO Case Law V-A, 2.4.2 a). Accordingly, the Respondents could not validly use a UPC cross-appeal simply to attack the Local Division’s reasoning on urgency, because the application for provisional measures had been dismissed in their favour (r. 208-209).