The Hague - Local Division UPC_CFI_43/2025
Preliminary Order
of the Court of First Instance of the Unified Patent Court
delivered on 10/07/2025
regarding R.263

APPLICANT/ CLAIMANT IN THE INFRINGEMENT PROCEEDINGS
1) Advanced Brain Monitoring, Inc.
(“Claimant”) - 2237 Faraday Ave - CA 92008 -
Carlsbad - US
Represented by Wim Maas

RESPONDENTS/DEFENDANTS IN THE INFRINGEMENT PROCEEDINGS
1) Koninklijke Philips N.V.
High Tech Campus 52 - 5656 AG
Eindhoven - NL
2) Philips RS North America
LLC
1001 Murry Ridge Lane -
PA 15668 - Murrysville -
US
3) Respironics Deutschland
GmbH & Co. KG
Gewerbstraße 17 - 82211 -
Herrsching am Ammersee
- DE
All respondents/defendants (“Defendants”) are represented by Hendrik Ras.

PATENT AT ISSUE
Patent no. Proprietor/s
EP2437696 ADVANCED BRAIN MONITORING INC

DECIDING JUDGE
Judge-rapporteur

LANGUAGE OF PROCEEDINGS: English

POINTS AT ISSUE
1. The Claimant in the main action filed this R.263 application (as App_32667/2025, the “Application”) requesting leave to change its claim or amend its case. The requested amendment is that the claims be based on the B2 version of the patent, instead of on the B1 version that was mentioned in the statement of claim (“SoC”). The SoC was filed within one month after the EPO maintained the patent in the amended B2 form.
2. The JR understands that the Application is filed on the condition that the court deems such amendment necessary, e.g. because it does not accept that Claimant has based, or has meant to base, its claims on the B2 version of the patent from the start.
3. The condition is not met. Art. 68 European Patent Convention (“EPC”) clarifies that from the outset the patent shall be deemed not to have had the effects specified in Art. 64 and Art. 67 EPC to the extent that the patent is limited. Therefore, already on the date on which the SoC was filed, the B1 version of the patent no longer existed and had been replaced by the B2 version with retroactive active effect. Thus, the B2 text is deemed to exist/be valid from the date on which the patent was first granted.
4. The Defendants were given the opportunity to be heard. The JR thereby indicated her intention to dismiss the Application to amend as being devoid of purpose (cf. R.360, which refers to actions, but there is no reason not to apply this to Applications). The JR also proposed to admit the revised SoC submitted as annexes TW04 and TW05 (with and without track changes, the latter reflecting the amendments due to the B2 version) with the Application, into the proceedings for easy reference. TW04 is then to replace the SoC as originally filed, to reflect the correct text of the patent.
5. The Defendants replied on 22 July 2025, stating that they do not object to this.

ORDER
1. The R.263 Application to amend the case is dismissed.
2. Annex TW04 is admitted into the proceedings to replace the SoC as originally filed.
3. Annex TW05 (with track changes) is also admitted into the proceedings.

ORDER DETAILS
Order no. ORD_32723/2025 in
Action Number: ACT_3301/2025
UPC number: UPC_CFI_43/2025
Action type: Infringement Action
Application No.: 32667/2025
Application Type: Application for leave to change claim or amend case/pleading (RoP263)