2026-01-13 - LD Munich - Aorticlab et al. v. Emboline et al. - UPC_CFI_628/2024, UPC_CFI_125/2025

1. Patent infringement is not excluded by the fact that a device is normally operated in a non-infringing manner and customers therefore do not regularly make use of the patented teaching, as long as the use of the patented teaching remains possible when using the device. In the case of a medical device, however, the possibility of an irregular but patent-compliant use can only be considered as patent infringement if such use is in line with professional practice and the recognised rules of medical science. 2. The unconditional transition from a counterclaim to a dependent counterclaim, which is dependent on the occurrence of an intra-procedural condition (i.e. a finding of patent infringement by the Court), means that the counterclaim is limited in accordance with Rule 263.3 of the Rules of Procedure (RoP). 3. If, in accordance with the counterclaimant’s request, no decision is made on the Counterclaim, the counterclaimant must bear the costs for the counterclaim.

The Munich LD dismissed an infringement action concerning an embolic protection device (EP 2 129 425). The key disputed feature was a 'pull loop or other graspable structure engageable by a hook' for device retrieval. The court found that using a hook on the attacked FLOWer device would require piercing the mesh — not a lege artis use. For medical devices, irregular but patent-compliant use can only constitute infringement if it accords with professional practice and recognized rules of medical science. The counterclaim for revocation was not decided because the defendant made it conditional on infringement (R. 263.3 RoP limitation).