Vaporizer battle comes to end with one last win for NJOY at UPC Court of Appeal

As 2025 drew to a close, the UPC Court of Appeal dismissed VMR’s appeal and revoked one of the patents-in-suit, EP 3 456 214 in its entirety (case ID: UPC_CoA_71/2025). The patent had previously survived an opposition at the EPO. While the Opposition Division maintained the patent in amended form in 2023, the UPC has now ruled that it lacks inventive step.

The panel under presiding judge Rian Kalden and legally qualified judges Ingeborg Simonsson and Patricia Rombach, thus upheld the first-instance judgment. The bench also included technically qualified judges Wiem Samoud and Andrea Scilletta.

Five to four

In September 2023, NJOY filed revocation actions at the UPC against nine patents protecting Juul Labs’ vaporizer technology. The Paris central division ruled on all nine proceedings in late 2024 and spring 2025. The court upheld five patents and revoked four.

The Paris central division upheld Juul Labs’ EP 3 504 991, EP 3 504 989 as well as VMR’s EP 2 875 740 and EP 3 626 092, but declared Juul Labs’ EP 3 498 115 invalid. According to the UPC case search, no appeals were lodged and all these cases have since closed (case IDs: UPC_CFI_315/2023, UPC CFI 312 /2023, UPC_CFI_307/2023, UPC_CFI 311/2023 and UPC_CFI_309/2023). Of these five patents, the EPO meanwhile revoked Juul Labs’ EP 991, EP 989 and EP 115 in parallel opposition proceedings, mostly due to added matter.

And then there were none

The Paris central division also invalidated Juul Labs’ EP 3 504 990 due to added matter and revoked Juul Labs’ EP 3 430 921 as well as VMR’s EP 3 456 214 (case IDs: UPC CFI 314 /2023, UPC CFI 316 /2023 and UPC_CFI_308/2023). However, the court upheld VMR’s EP 3 613 453, albeit in amended form (case ID: UPC_CFI_310/2023).

VMR Products and Juul Labs appealed these decisions.

In the cases of EP 990 and EP 921, the Court of Appeal issued orders to stay the appeal proceedings pending the EPO’s decisions in parallel opposition proceedings. Just before Christmas 2025, the Boards of Appeal revoked both patents, upholding previous Opposition Division decisions. The UPC has not yet published final decisions.

After the Boards of Appeal also revoked EP 453 in late 2025, the UPC Court of Appeal cancelled the oral hearing. Now, with EP 214 also invalidated by the second-instance court, all pending appeals have concluded.

Court grants access

Meanwhile, the cases of EP 990 and EP 921 took an unexpected turn when Nicoventures, a company established in 2010 by British American Tobacco (BAT) to develop and commercialise non-tobacco nicotine products, applied for access to court files regarding the dispute. The company was party to opposition proceedings at the EPO. Both NJOY and Juul Labs partially objected the access.

In spring 2025, the Court of Appeal granted access with specific conditions: “Nicoventures shall not be allowed to file the written pleadings, or parts thereof, with other courts or judicial instances such as the EPO Boards of Appeal, or distribute them elsewhere, until the present appeal has been adjudicated or otherwise closed” (case IDs: App_20083/2025 and App_16612/2025). In the end, Nicoventures, alongside other opponents, were successful in the opposition proceedings, as the Boards of Appeal revoked both patents last December.

Familiar faces

Henrik Holzapfel, partner at McDermott Will & Schulte, filed nine revocation actions for NJOY Netherlands against the two competitors and also represented the client in the appeal. McDermott lawyers Laura Woll and Lisa Nassi, alongside European patent attorney Diana Pisani, provided support. Patent attorney Mathias Karlhuber of Cohausz & Florack served as co-counsel and provided technical expertise.

Bernhard Thum of Munich-based patent attorney firm Thum IP represents the two defendants from the beginning. Patent attorneys Jonas Weickert, Andreas Mötsch and Leonhard Walter provided support in most cases. Since the dispute began, Tobias Wuttke and Tilmann Müller of Bardehle Pagenberg have provided legal support to the patent attorney team.