UPC Dusseldorf LD affirms 10x v. Curio preliminary injunction in final ruling

Context: 10x Genomics was an “early adopter” of the United Patent Court (UPC) with its patent enforcement against NanoString. That dispute has meanwhile been settled on terms presumably favorable to 10x after a patent fared better than predicted in the European Patent Office (EPO) (May 14, 2025 ip fray article). But NanoString (whose assets were acquired by Bruker) is not the only company to have been sued by 10x in the UPC. More than a year ago, 10x won a preliminary injunction (PI; called “provisional measures” in the UPC) against Curio Bioscience (April 30, 2024 ip fray article).

What’s new: Today the UPC’s Dusseldorf Local Division (LD) rendered its final judgment in that 10x v. Curio case (PDF), with the outcome being identical to the one of the PI proceedings except for the value of the dispute being raised from 2 million euros to 3. The patent-in-suit is EP2679391 (“Method and product for localised or spatial detection of nucleic acid in a tissue sample”).

Direct impact: Curio withdrew its appeal of the PI, so it is by no means certain that it will now appeal the final judgment.

Wider ramifications: The most interesting takeaway for UPC practitioners is that the panel allowed 10x to present a claim construction argument at the latest possible stage: the oral hearing. This permissive approach did not ultimately enable 10x to prevail on its allegation of an indirect infringement of claim 1 (like the PI, the permanent injunction is based on the direct infringement of claim 14 of the patent-in-suit). But it is an interesting deviation from the UPC’s otherwise almost sacrosanct “frontloaded proceedings” bar to late-presented arguments. It’s conceivable that this claim construction argument could benefit 10x in some future case(s) where it would be raised earlier.

Curio was ordered to bear 70% of the costs. In order to have 100% of them imposed on Curio, 10x would have had to prevail on claim 1 as well. And it came closer to it this time around, but didn’t get there in the end.

Many UPC litigants, whether plaintiffs or defendants, have seen their late-presented arguments thrown out based on the court holding that you must raise every argument at the earliest opportunity. In 10x v. Curio, the Dusseldorf LD made a rare exception.

10x sought (albeit ultimately unsuccessfully) to broaden the scope of claim 1:

27. During the oral hearing, the Claimant referred to subclaims 7 and 9 for the first time. According to the Claimant, interpreting claim 1 in a way that the release must take place from the surface of an intact array would result in a situation where at least two of the embodiment protected by subclaims 7 and 9 would not be covered by claim 1.

Without going into too much detail, the key claim element is an “array” and 10x argued that subclaims 7 and 9, which are derived from claim 1, would not fall within the scope of that parent claim if a bead array was not captured by claim 1.

In a headnote and in the body of the decision, the Dusseldorf LD deemed the belated introduction of that argument admissible because

claim construction is a matter of law (as the Court of Appeal (CoA) held in Insulet v. EOFlow when it reversed the denial of a PI ), so this is not about new evidence, and
10x was merely being consistent with its earlier argument on how to interpret “array” (the difference just being that it pointed to two subclaims to underpin that old argument in a new way).