Article 26

Right to prevent the indirect use of the invention

1.   A patent shall confer on its proprietor the right to prevent any third party not having the proprietor’s consent from supplying or offering to supply, within the territory of the Contracting Member States in which that patent has effect, any person other than a party entitled to exploit the patented invention, with means, relating to an essential element of that invention, for putting it into effect therein, when the third party knows, or should have known, that those means are suitable and intended for putting that invention into effect.

2.   Paragraph 1 shall not apply when the means are staple commercial products, except where the third party induces the person supplied to perform any of the acts prohibited by Article 25.

3.   Persons performing the acts referred to in Article 27(a) to (e) shall not be considered to be parties entitled to exploit the invention within the meaning of paragraph 1.

Case Law:

IPPT20240827, UPC CFI, LD Munich, Hand Held Products v Scandit

Preliminary injunction for indirect infringement (Article 62 UPCA, R. 211.2 RoP). Sufficient degree of certainty for provisional measures regarding indirect infringement, not regarding direct infringement (Article 62(4) UPCA, Rule 211(2) RoP, Article 25 UPCA, Article 26 UPCA)). Urgency (Rule 209(2)(b) RoP, Rule 211(3) RoP). As soon as the applicant has all knowledge and documents that reliably enable a promising legal action, he must regularly file the application for interim measures within two months. In case of an injunction to prevent indirect infringement it must always be considered whether a relative prohibition or an absolute prohibition should be issued in view of the remaining possibilities for the patent infringer to offer or supply the essential means for other, non-infringing purposes. Indirect infringement (article 26 UPCA): it must regularly be assumed that the supplied party will use the means in the manner suggested to it in the supplier's advertising messages, instructions for use and other documents.

IPPT20240703, UPC CFI, LD Düsseldorf, Kaldewei v Bette
Direct (undisputed) infringement (Article 25 UPCA) and indirect infringement (Article 26 UPCA). Indirect infringement requires a double territorial connection. This means that, on the one hand, the offer and/or delivery must take place in the territory and, on the other hand, the invention must also be used in the territory. Not necessary to decide the question whether in case of a European (bundle) patent subject to the UPCA without unitary effect, it is sufficient that the offer/supply takes place in one of the contracting member states in dispute and is intended for direct use of the invention in the other protected states, or whether, it must be required that the unlawful act is directed to the same Contracting Member State in which the direct patent infringement is realised by the supply. 

IPPT20231211, UPC CFI, LD Düsseldorf, Ortovox Sportartikel v Mammut Sports
Indirect use of the invention (article 26 UPCA). Obvious from the circumstances that the defendants know that the accused embodiment is objectively suitable for being used in a patent-infringing manner, and also that the customers of the accused embodiment use it to carry out the patent-compliant process.