For Medical Devices, “Possible Use” Amounts To Infringement Only If The Use Is In Line With Medical Practice

Emboline v. AorticLab—UPC_CFI_628/2024, judgment of January 13, 2026

The UPC Munich Local Division (the LD Munich) has dismissed an infringement action relating to a medical device. It confirmed that a device can still infringe a patent, even if it is normally operated in a non-infringing way, as long as the patent-infringing use remains possible. However, the court introduced a significant qualification for medical devices: the infringing use needs to be “in line with professional practices and the recognized rules of medical science”, i.e., constitute a lege artis use. 

Background

Emboline owns patent EP 2 129 425 relating to an embolic protection device that can be deployed in a patient’s blood vessel to protect its organs from potential emboli. Such devices can be used acutely, e.g., during an interventional cardiology procedure, or they can be implanted for chronic embolic protection e.g. from cariogenic emboli. One main feature of the patent is its graspable structure engageable by a hook for device removal. 

Emboline requested a permanent injunction in France, Germany and Italy against AorticLab’s own embolic protection device. They also requested product destruction, legal costs, interim damages and publication of the decision. 

The LD Munich rejected the infringement claim and dismissed the requests. 

The LD Munich decision

The central issue was whether AorticLab’s embolic device included a graspable structure engageable by a hook as required by the patent claim. Emboline asserted that the embolic device included a V-shaped graspable structure. However, the LD Munich found that it was “neither intended nor suitable” for removal from a blood vessel by a hook using a V-shaped graspable structure. The defendant's device was normally removed by pulling it out using the rod to which it is attached. Emboline itself admitted that, if a hook were inserted into the alleged V-shaped structure, the filter mesh material would need to be pierced and therefore damaged.  

The LD Munich established the following principle: patent infringement is not excluded simply because a device is normally operated in a non-infringing way, as long as the use of the patented teaching remains possible. However, and this is the key contribution of the decision, the court held that, for medical devices, an infringing use can only be assumed “if such use is in line with professional practice and the recognized rules of medical science”.  

During the oral hearing, AorticLab limited its counterclaim for revocation by making it dependent upon a finding of patent infringement. As the LD Munich found no infringement, it did not decide on the counterclaim and AorticLab had to pay the costs for the abandoned counterclaim.

Key takeaways

Patent infringement is not excluded by the fact that a device is normally operated in a non-infringing manner. However, for medical devices, a device normally operated in a non-infringing way can only constitute infringement if the use of the device in an infringing way is in line with professional medical practice or recognised medical standards. Examples may be performing an operation using a common device or using a device with an infringing functionality, if that is expected by healthcare professionals. 

It is possible to make a revocation counterclaim dependent on the occurrence of an intra-procedural event (e.g., a finding of patent infringement) and this constitutes a limitation of the counterclaim under Rule 263.3 RoP.

If, in accordance with the request, no decision is made on the counterclaim, the counterclaimant must bear the costs of the counterclaim.