2026-02-11 - LD Munich - Philips v. Belkin et al. - UPC_CFI_171/2025

ENGLISH: 1. If a final decision on an infringement action has already been taken, for a second (consecutive) infringement action with respect to the same patent and between the same parties the question arises whether the subject-matter of this dispute is identical to that of the first action (res judicata). Since the subject-matter is determined essentially by the contested embodiment, the identity of the subject-matter is overcome if the contested embodiment changed and therefore new facts are given for the second Action. 2. Where a CE-marking is a mandatory requirement for the sale of products in the European Union, companies issuing the respective EU declaration of conformity or acting as Authorized EU Representatives are liable as accessories for patent infringement caused by products covered by this declaration of conformity, if it constitutes joint, coordinated, and purposeful conduct by group companies. 3. In the context of FRAND-obligations, a party cannot successfully rely on a missing notification of infringement, if the party has already and prior to the filing of the infringement action entered negotiations with a patent pool regarding the use of the respective standard.

The Munich Local Division decided a second infringement action between the same parties on the same patent and set out when res judicata bars one. The subject-matter of a patent infringement action is determined essentially by the actual form of the contested embodiment measured against the features of the asserted claim, so identity of cause of action is overcome where new facts change that core; a first action about earlier Qi versions therefore does not bar a second about the Magnetic Power Profile of Qi2. On capacity to be sued it held that where CE marking is mandatory for sale in the European Union, the company issuing the EU declaration of conformity and the company acting as Authorized EU Representative are liable at least as accessories, because without them the products would not be marketable in the member states, and because within a group that has been litigating the same allegation for years their support is deliberate and targeted participation rather than the act of a third party. The panel maintained that view against a later Court of Appeal order which, agreeing with the Hamburg Local Division, held that an authorized representative does not perform infringing acts and is not an 'infringer' within Art. 62 UPCA. On FRAND it held that an implementer already negotiating a pool licence covering the standard cannot rely on a missing notification of infringement.