Article 25

Right to prevent the direct use of the invention

A patent shall confer on its proprietor the right to prevent any third party not having the proprietor's consent from the following:

(a) making, offering, placing on the market or using a product which is the subject-matter of the patent, or importing or storing the product for those purposes;

(b) using a process which is the subject-matter of the patent or, where the third party knows, or should have known, that the use of the process is prohibited without the consent of the patent proprietor, offering the process for use within the territory of the Contracting Member States in which that patent has effect;

(c) offering, placing on the market, using, or importing or storing for those purposes a product obtained directly by a process which is the subject-matter of the patent.

Case Law:

IPPT20231211, UPC CFI, LD Düsseldorf, Ortovox Sportartikel v Mammut Sports
Direct use of the invention (article 25 UPCA). Element of suppression (“Unterdrückung”) is fulfilled. 

IPPT20231205, UPC CFI, LD Munich, 10x Genomics v Nanostring

“Offering” (Article 25 UPCA) includes any act committed within the scope of the patent in question which, according to its objective explanatory value, makes the subject-matter of the demand available in an externally perceptible manner for the acquisition of the power of disposal.

IPPT20231018, UPC CFI, LD Düsseldorf, myStromer v Revolt Zycling

Offering a product which is the subject matter of the patent (article 25(a) UPCA) is to be understood in purely economic terms. In the case of a product, it includes any act committed within the scope of the European patent which makes the subject-matter of the demand available. Therefore, the display of goods within the scope of the respective patent taking place at a trade fair taking is an offering within the meaning of this provision. In order to be offered, not all features of the patent claim need to be shown in the advertising and thus also on a trade fair stand if it must be assumed, when objectively considering the circumstances actually given in the case in dispute, that the product shown corresponds in its technical design to the subject-matter of the patent. It depends on whether it can be reliably concluded from the existence of other objective circumstances that the product is in conformity with the patent. An essential aspect in this respect is the view of the relevant public as to the objective explanation in the advertising, which must be determined taking into account all the factual circumstances of the individual case.