Ortovox v Mammut & Anor (UPC_CFI_16/2024)

• Ortovox brought a claim against the defendants for infringement of its patent protecting an avalanche victim search device with a transmission unit, reception unit, and a control unit for a speaker.
• The defendants brought a counterclaim for invalidity. They also maintained that they did not infringe the patent because their allegedly infringing device first required certain functions to be activated by the user to meet all the claim features. The Düsseldorf LD found that an alleged infringer must be held accountable for the behaviour of their purchasers if they instruct them to perform the activation steps or if they knowingly exploit such purchaser-side activation, knowing that it will take place.
• The court found the patent valid and infringed. An injunction was granted and an order for destruction was made on the basis of Article 25(a) UPCA (in conjunction with Article 64(2)(e) and 64(4) UPCA). The Düsseldorf LD stated that destruction is intended to prevent the entry or re-entry of the products into the market.
• The possibility of a software deactivation of the specific function necessary for the implementation of the teaching of the patent can only be considered instead of destruction if it ensures that the attacked embodiment could not be put into an infringing state again. In this case, the defendants were not able to present such a deactivation solution to the court. They even noted that the voice function could be activated in a patent-free foreign country for devices sold in jurisdictions in which the patent is in force.

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