It had already become apparent during the oral proceedings on 19 September 2023 (http://www.eplit.eu/second-oral-proceedings-before-the-munich-local-division-of-the-upc/): The request for provisional measures was viewed much more critically by the court in these second proceedings on the application for provisional measures (UPC_CFI_17/2023, EP 2 794 928 B1) than in the first proceedings (UPC_CFI_2/2023, EP 4 108 782 B1). And it was the points discussed there that ultimately stood in the way of issuing the order for provisional measures, according to the brief statement of reasons (the entire decision is to be published relatively soon): The question of infringement depends on how the claim is interpreted, which contains a “lapse” admitted by the representatives of the patent proprietors themselves. The question of validity of the claim was also not clear. Here the defendants asserted a violation of Art. 123 (2) EPC. Finally the question of urgency was also open, because the patent here is a bundle patent which could have been asserted earlier in national injunction proceedings.
These issues ultimately led to the rejection of the application, with the court pointing out that this did not prejudge the decision on the merits.
In the opinion of the neutral observer, 10x Genomics can live with this decision, because the injunction from the parallel patent with unitary effect EP 4 108 782 B1 against the same products was issued (http://www.eplit.eu/big-bang-in-munich-report-on-113-page-decision-ordering-provisional-measures-in-the-case-10x-genomics-vs-nanostring-published-by-the-munich-local-division-of-the-upc-within-three-weeks-of-the-oral/) and is effective in all UPC contracting states.