UPC CFI, LD Dussseldorf , 22 June 2026 : Infringement, exhaustion , liability of managing director and more.

Preliminary objection on international jurisdiction dismissed – Patent infringed, permanent injunction granted. (Article 25 UPCA , Article 26 UPCA , Article 63 UPCA, Rule 19.1(a) RoP) 

Jurisdiction and competence of court (Article 4(1) , Article 71b(1) Brussels Regulation) 

Jurisdiction arises since the defendant has its registered office in a UPC member state (Hamburg, Germany). No objection on jurisdiction raised by Chinese defendant. 

Direct Infringement (Article 25 UPCA) 

Ongoing acts - 

A normative and thus evaluative assessment is required when determining whether acts of infringement are “ongoing”, one must not adopt an overly formalistic approach that would run counter to the objectives of the UPCA. 

A continuing act may therefore be presumed if the infringer continues his infringing conduct even though he could have ceased it in view of the entry into force of the UPCA. Contrary to the plaintiff’s view, the existence of a continuing act […] cannot be established solely on the grounds that the defendants neither issued a cease-and-desist declaration nor otherwise eliminated the risk of further infringement. 

Managing director (Defendant 3) personally liable as accomplice co infringer - does not merely hold a corporate position (Article 64 UPCA , Article 25 UPCA).

Defendant personally signed the invoices in each instance during the test purchases conducted in China. Even if these test purchases in China do not in and of themselves constitute an infringement of the patent at issue, this conduct nevertheless demonstrates that his position extends beyond that of a typical managing director or director. 

Around the time of the test purchase —he was, as a director and majority shareholder, actively involved in the operational business and the distribution of the contested embodiment by Defendant No. 1. 

No infringement by German distributor (Defendant 2) – No evidence to suggest the defendant could also offer or distribute the contested embodiments.

Defendant was entered in the commercial register on after the test purchase , and therefore did not yet exist at the time of the test purchase. 

It cannot be inferred from an overlap in the ownership structure that an act of infringement by Defendant 2 is imminent , insofar as argued that Defendant 2 is entirely owned by the managing director. 

The plaintiff does not even claim that Defendant No. 2 is, from a legal standpoint, the legal successor to Vacdrain GmbH. 

It is undisputed that Defendant No. 2 and Vacdrain GmbH are two separate companies with different names, different managing directors, different addresses, and different shareholder structures. 

Insofar as the plaintiff nevertheless attempts to infer liability on the part of Defendant 2 as the de facto legal successor to Vacdrain GmbH, the plaintiff—even if some circumstantial evidence may support this—has failed to present sufficiently concrete facts on the basis of which such legal succession could be established with the certainty required for a judgment. 

No Exhaustion – maintenance and restoration of ability (Article 29 UPCA , Article 26 UPCA). 

The replacement of the vacuum buffer medium constitutes a “new manufacture” of the wastewater system according to the invention, since the technical effects of the invention are reflected precisely in the replaced vacuum buffer medium. If a part of a patent-protected product is exchanged or replaced, it must be determined whether this exchange or replacement constitutes permissible use in accordance with the intended purpose or whether it amounts to an impermissible new manufacture of the patent-protected product. 

The decisive factor here is whether the exchange or replacement preserves the identity of the specific product already placed on the market or whether a new product embodying the invention is thereby created. 

No basis for statute of limitations in connection with the injunction sought (Article 72 UPCA, Article 24(2) , (3) UPCA) 

Pursuant to Art. 72 UPCA , notwithstanding Article 24(2) and (3) of the UPCA, actions relating to all forms of financial compensation must be brought no later than five years after the claimant became aware of, or reasonably should have become aware of, the last event giving rise to the action. 

No implied consent by plaintiff (Article 25 UPCA) 

Based on the arguments presented by the defendants, it cannot be established that at the time of the delivery of the exhaust valves to Evac Germany GmbH referred to by the defendants, the plaintiff was aware not only of the delivery in question but also of the fact that the exhaust valves utilized the technical teachings of the patent at issue.

IPPT20260622, UPC CFI, LD Dusseldorf, Evac v Shanghai VacDrain