2026-08-18 - CoA - Lepu Medical v. Occlutech - UPC-COA-0000087/2026

- As a general rule, the defendant addressed in an injunction is obliged to control third parties to which it assigns tasks to fulfil the injunction on its behalf. Similarly, if a defendant uses a third- party marketing platform and provides content for it, it is the defendant’s responsibility to ensure that the platform´s content does not result in non-compliance with the court order. - It is not sufficient to implement geo-blocking measures to block the purchase option on a platform for territories prohibited by the PI order when offering and placing on the market, which are independent actions under Art. 25 UPCA, have been prohibited by the PI order. - An accurate website disclaimer for availability of attacked embodiments in the prohibited countries can be adequate for compliance with an injunction, provided that whatever was included on the website could not reasonably be interpreted by any visitor as constituting an offering of the attacked embodiments within the territories as specified in the order.

The Court of Appeal rejected an appeal against a first-instance order forfeiting penalties for non-compliance with a provisional injunction, applying the penalty framework it set out in Kodak v Fujifilm under R. 354.3 RoP. It held that an injunction addressee must control third parties it engages to give effect to the order, and must ensure that content it supplies to a third-party marketing platform does not cause non-compliance. Geo-blocking a purchase option does not discharge a prohibition on offering, because offering and placing on the market are independent acts under Art. 25 UPCA; an accurate availability disclaimer suffices only where nothing else on the site could reasonably be read by any visitor as an offering within the enjoined territories. Because a forfeited penalty is both coercive and punitive and is paid to the Court, the absence of sales or of loss to the applicant neither negates the breach nor reduces the amount, and the duration of a continuing offering rather than the single proven contact is the unit of assessment. The amount of the individual daily penalties lies within the first-instance court's broad discretion.