2026-05-07 - LD Hamburg - SILIMED Indústria de Implantes Ltda. et al. v. Polytech Health & Aesthetics et al. - UPC-CFI-0000481/2026
- Aktenzeichen:
- UPC-CFI-0000481/2026
- Datum:
- Spruchkörper:
- Court of First Instance - Hamburg (DE) Local Division
- Art:
- Order
- Parteien:
- SILIMED Indústria de Implantes Ltda a. o. v. Polytech Health & Aesthetics GmbH a. o.
Kernaussage: ENGLISH:
2026-05-07 - LD Hamburg - SILIMED Indústria de Implantes Ltda. et al.
v.
Polytech Health & Aesthetics et al. - UPC-CFI-0000481/2026
ENGLISH:
1. The success of a subsequent entitlement proceeding, whereby the Claimant becomes the rightful owner of the patent, has no bearing on the validity of an opt-out declaration, as transfer of ownership does not have retroactive effect. The meaning of the term ‘proprietor’ in Article 83(4) UPCA is to be understood in no other way.
2. The validity of filing a national revocation action is not precluded by a possible protective order issued by a national court and hinders a valid withdrawal of an opt-out.
landmark
Hamburg LD (Klepsch sitting alone) granted a Rule 19 Preliminary Objection and dismissed the infringement action against EP 2 581 193 B1 as inadmissible, holding that the patent remains validly opted-out. The court ruled that a successful national entitlement decision (German Frankfurt HRC, final 5 January 2026) has no retroactive effect on the validity of an opt-out filed by the previously registered proprietor: the term 'proprietor' in Art. 83(4) UPCA refers to substantive ownership at the time of the relevant act, and German entitlement transfers operate ex nunc, not ex tunc. The new owner's withdrawal of the opt-out under Art. 83(4) UPCA and Rule 5.8 RoP was further held ineffective because a national revocation action by PTH&A had already been 'brought' before the German Federal Patent Court on 9 January 2026 — and an action is 'brought' on receipt of the complaint (§ 81(4) PatG / Art. 32(1) Brussels Ibis), regardless of when service is effected and regardless of whether the action breaches a separate national protective order. The Registrar's earlier R. 5A RoP decision was held non-binding on the court.