GLAWE DELFS MOLL (Claus Becker) acted as patent attorneys for the successful defendants in the infringement action.

By decision of 19 August 2026 (UPC-CoA-908/2025, 909/2025 and 918/2025), the Court of Appeal of the Unified Patent Court ruled on EP 2 755 901, which concerns a display and distribution package for eggs. The infringement action remains dismissed, and the method claim as granted was revoked as well – unlike at first instance.

The dispute turned on a single claim feature: the “upwardly extending retainment projection” by which the bottom part locks onto the cover part. Rather than such a projection, the contested embodiments have a flexible closure flap of the kind long known from the prior art for egg packages. Whether the claim covers such flaps decided the case.

Both instances answered that question in the negative – but on different grounds, and it is this shift that makes the decision worth reading.

The Düsseldorf Local Division had understood the retainment projection as a component sufficiently rigid to allow the cover part to slide over the nose when closing. The Court of Appeal reaches the same result but expressly rejects that route: the patent discloses neither a specific nor a general rigidity of the retainment projection, nor does it warn against flexible solutions, and no particular rigidity is implied for the skilled person. The passages relied on by the Local Division all concern ancillary aspects – increased rigidity is mentioned in connection with pillow posts that are not claimed, and the slight resilience of the fibrous material in connection with the tongue of certain dependent claims.

What carries the construction instead is the delimitation from the prior art – subject to an express condition: the fact that a patent specification distinguishes itself from the prior art specifically discussed in it may be relevant to construction, provided the specification makes sufficiently clear what the distinction relates to and by which feature it is made. The Court of Appeal considered that condition met here: the description expressly states the objective of a package without a traditional locking flap; closing in a single operation cannot be achieved with a flap that must first be raised; and the patent uses the term “flap” only when referring to the prior art, while none of the drawings shows one.

For drafting practice, the lesson is this: every express delimitation in the introductory part of the description may later be read as construction material against the scope of protection you sought.