Onomatopoeia defeated the infringement claim.
Context: This is a brief follow-up to the January 15, 2026 report on the Unified Patent Court’s (UPC) Vienna Local Division’s (LD) hearing in Messerle v. Sabert. For details on the issues and arguments, please look up that report.
What’s new: The court has handed down (PDF) one of the most focused and concise UPC decisions ever in a case where both infringement and revocation had to be addressed. Neither the infringement claim nor the revocation counterclaim succeeded. In procedural and substantive terms, the ruling provides clarifications in headnotes that patent holders will like. The third headnote touches on a linguistic question, and while patent holders often feel they are in good hands when their infringement lawsuits are decided by German(-speaking) judges, native knowledge of German doomed this one. There was a credible infringement theory based on the English claim language, but the patent-in-suit’s primary language is German, where the critical term has a much narrower meaning than in an English translation. The non-infringement conclusion makes a whole lot of sense against that backdrop and does not mean that the court was being overly strict. The same problem would presumably have arisen in any Germany-based UPC LD.
Direct impact: Given the generally constructive relationship between the parties, it could be that the litigation settles out now. If Messerle appeals, there will realistically be at least one German-speaking judge of the Court of Appeal (CoA) on the panel, and the outcome on infringement will then depend on whether the German-speaking panel member(s) convinces the others of the narrow meaning of “Knick” in German, which is not merely a bend but must be pointed.
Wider ramifications: A few months ago, another UPC Vienna decision (in which an injunction came down) led to a settlement (November 28, 2025 ip fray article). ip fray believes the opportunity that the UPC Vienna LD represents is underexploited. For most cases (this one was an outlier for linguistic reasons), it’s a plus to have a high likelihood of at least one German judge joining Presiding Judge Dr. Walter Schober, and time-to-trial is relatively short.
How the patent survived
As the hearing report already explained, there was a problem with an invalidity argument have been untimely. That was one issue facing the revocation counterclaim and it is summed up in the first headnote:
Due to the front-loaded approach of the UPC system R 25.1 RoP requires the counterclaim for revocation to contain an indication of the facts relied on (R 25.1 (c) RoP) and the evidence relied on, where available and an indication of any further evidence which will be offered in support (R 25.1 (d) RoP). The parties are under an obligation to set out their full case as early as possible (Preamble RoP 7, last sentence) and to provide all their legal and factual arguments, and any evidence supporting it in a timely manner. Whenever possible, Counterclaimant is obliged to submit its arguments, facts and attachments in its counterclaim of revocation. Submitting evidence for prior state of the [a]rt or for prior use at a later time requires a reasonable justification regarding to the timeliness.
The more interesting validity-related holding is of a substantive nature and clarifies that a document adduced as prior art will be evaluated for what it is, without regard to what one may infer from a physical product it describes:
A commercial brochure, as a stand-alone piece of the prior art will be evaluated as such by the person skilled in the art. Already from the outset, obtaining the physical product that is being advertised in a commercial brochure is not a valid approach to establishing the disclosure of the stand-alone publication that the commercial brochure is.
At the hearing, Judge Anna-Lena Klein suggested to the infringement defendant to make the revocation counterclaim conditional. From the perspective of judicial economy, that would have made sense, but not so much in terms of litigation economics. It is, at any rate, a good thing that the court has now had the opportunity to provide the clarification contained in that second headnote.
Non-infringement: a linguistic issue
When native speakers of German read or hear the noun “Knick”, they have a narrower understanding than native speakers of English have of a word like “fold”. In fact, “Knick” is an onomatopoeic word: a word that phonetically imitates, resembles, or suggests the sound associated with the thing or action it denotes. Unlike in English, the initial “k” is pronounced. The overall effect is like you can hear something making a sound because it is folded rather abruptly and sharply. That term doesn’t come up in the decision, but it probably explains the subconscious effect facing the claimant.
One cannot blame the judges, three of whom are native speakers of German, for having the meaning of that word in mind when looking at the patent, even when the language of proceedings was English and the English translation of the claims would lend itself to a broader interpretation. Maybe that is why the claimant elected to file in English. But the court clarified in the third and final headnote that the original language of the patent controls its interpretation:
According to Art 70 (1) EPC, the text of a European patent in the language of the proceedings shall be the authentic text in any proceedings before the European Patent Office and in any Contracting State. For EP415 the language of the patent is German. Although the language of the proceedings is English the court bases its interpretation und considerations on the German text of the patent in suit and reads in this way the English translations of the patent[‘]s claims as it is published in EP 3 705 415 B1.
Panel and counsel
For pictures, see the hearing report.
Panel: Presiding Judge Dr. Walter Schober (July 20, 2024 ip fray interview), Judge Anna-Lena Klein (CD Milan; famous from the Munich I Regional Court and one of the judges who would be eligible to participate in German-language proceedings in Vienna, with potentially better availability than her busy Germany-based colleagues; she only brought up the question of a conditional revocation claim and did so in exceptionally fluent English), Judge Kai Härmand (Talinn, Estonia), and Technically Qualified Judge Max Tilmann.
Counsel for infringement plaintiff Messerle: Torggler Hofmann’s Florian Robl, PhD, Dr. Markus Gangl and Melanie Leininger. Heiner Messerle, general manager and shareholder of Messerle GmbH (his father founded the company) and the inventor of the patent-in-suit, personally attended the hearing.
Counsel for infringement defendant Sabert:
- Attorneys-at-law: Janson’s Professor Mireille Buydens and Charles Bernard.
- Patent attorneys: Calysta’s Sjors de Koning, Ludivine Coulon and Gaétan Silvestre, Ph.D.
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