Aesculap v Shanghai International Holding Corporation (UPC_CFI_213/2025)

• Aesculap brought an action for a preliminary injunction against Shanghai International for alleged infringement of its patent relating to a surgical torque-transmitting instrument and associated tool. The application was directed against the offer and sale of tools manufactured by another Shanghai entity, for which Shanghai International served as its EU authorised representative under the Medical Devices Regulation.
• Aesculap had issued the application ex parte but the judge-rapporteur decided that they wished to inform Shanghai International of the application in accordance with Rule 209.1(a) RoP. Aesculap did not object, so the court gave Shanghai International one month to respond. Shanghai International then stated that it did not wish to be represented at the hearing. The court noted that the absence of the defendant did not preclude a substantive decision on the preliminary injunction and did not require the issuance of a default judgment.
• The Düsseldorf LD granted the preliminary injunction.
• On infringement, the court established with sufficient certainty that Shanghai International's offer and distribution of the attacked embodiment constituted direct infringement. The court found Shanghai International's non-infringement argument unconvincing. It explained that if a defendant only makes general statements on the applicant's burden of proof and generally maintains that the applicant has not proven any infringing act, the applicant's submission will be deemed to be undisputed as per Rule 171.2 RoP. The court stated that even if Shanghai International's argument was correct – that there were not any specific concrete acts of direct infringement – it would still be liable as an intermediary within the meaning of Article 63(1) UPCA.
• The Düsseldorf LD held that validity was proved to the extent required for ordering provisional measures. It noted that the patent was granted without any opposition being lodged against it and that Shanghai International "did not make it appear overwhelmingly probable" that the patent was invalid.
• Lastly, the court considered the weighing of interest, where it rolled into its analysis the separate urgency requirement. Ultimately, it concluded that the balance of interests favoured grant of the preliminary injunction. The court was satisfied that Aesculap had acted with the requisite urgency. Aesculap received a copy of the alleged infringing embodiment on 27 January 2025 and filed its application for a preliminary injunction on 18 March 2025.
• The court also noted that the preliminary injunction appeared factually necessary in this case as there was no established distribution channel for the attacked tools and they would stand to be in direct competition with Aesculap's product. Not only did sales of the attacked tools stand to jeopardise Aesculap's tool sales, but the court thought the sales could also undermine Aesculap and its group company's market position with respect to motor systems for which the tools were used. As such, it was not reasonable for Aesculap to wait for a decision on the merits in the main proceedings.

This analysis is based on a machine translation of a decision not available in English.