Local Division Düsseldorf, September 1, 2026, Decision On Infringement Action, UPC_CFI_307/2025

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This case examines the liability of an EU Authorized Representative under the Medical Device Regulation as an intermediary in patent infringement proceedings, even when they are not direct infringers. The court addresses critical procedural questions including deemed acceptance of jurisdiction, the consequences of non-attendance at oral hearings, and the discretion to refuse stays despite pending CJEU referrals.

Germany Intellectual Property

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Key takeaways

Rule 116.3 RoP governs the consequences of a party’s non-attendance at the oral hearing, treating them as relying on their written submissions.

If a defendant fails to attend the oral hearing despite being properly summoned, the court may proceed to issue a final decision on the merits rather than a default judgment under Rule 116.5 RoP, provided the claimant does not insist on a default judgment.

An EU Authorized Representative under Article 11 MDR is liable as an intermediary under Article 63(1) sentence 2 UPCA, even if not liable as an infringer.

Although the representative does not commit direct patent infringement under Article 25 UPCA or act as an accomplice, their regulatory services are an indispensable legal prerequisite for marketing the medical devices. Therefore, they can be enjoined from providing these services for infringing products.

Deemed acceptance of jurisdiction and competence occurs under Rule 19 RoP if a party fails to raise a timely objection.

International jurisdiction is established if the defendant does not lodge an objection under Rule 19 RoP or contest it in the defense. Competence of a specific Local Division is deemed accepted under Rule 19(7) RoP if no objection is raised.

The court has discretion under Rule 295(m) RoP and Rule 295(i) RoP to refuse a stay of proceedings despite a pending CJEU referral.

A stay is not required if the pending referral arises from summary proceedings under different regulations (e.g., Product Safety) and a stay would unreasonably delay the claimant’s enforcement of rights under the Medical Device Regulation.

Divison

Local Division Düsseldorf

UPC number

UPC_CFI_307/2025

Type of proceedings

Main infringement action

Parties

Claimant: Aesculap AG

Defendant 1: Shanghai Bojin Medical Instrument Co. Ltd. (settled)

Defendant 2: Shanghai International Holding Corporation GmbH (Europe)

Defendant 3: Shanghai Bojin Electric Instrument & Device Co., Ltd (settled)

Patent(s)

EP 2 892 442 B1

Jurisdiction

Germany, France, United Kingdom

Body of legislation / Rules

Art. 63 UPCA;
Art. 11 Medical Device Regulation (Regulation (EU) 2017/745)
Art. 4(1) and Art. 71b(1) Brussels I bis Regulation
Art. 8 Rome II Regulation (Regulation (EC) No 864/2007) in conjunction with Art. 24(2)(a) UPCA
Section 60 Patents Act 1977 (UK); Section 61 Patents Act 1977 (UK)
Rule 116.3 RoP; Rule 19(7) RoP

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