2026-08-25 - LD Hamburg - Janssen-Cilag v. Rivolution et al. - UPC-CFI-0001535/2026

When assessing urgency, it is relevant when the applicant was able to physically obtain and examine the potentially infringing product, provided that the applicant was not able, on the basis of other information obtained earlier, such as drawings, to determine with sufficient certainty whether the potentially infringing product infringes the patent in suit. Bei Beurteilung der Dringlichkeit ist darauf abzustellen, wann die Antragstellerin das potenzielle Verletzungsprodukt physisch erlangen und untersuchen konnte, falls sie aus zuvor erlangten anderen Informationen, wie zB Zeichnungen, nicht in der Lage war, mit hinreichender Sicherheit festzustellen, ob eine Verletzung des Antragspatents durch das potenzielle Verletzungsprodukt erfolgt.

The Hamburg Local Division granted a preliminary injunction over a battery-powered surgical stapling instrument, holding it more likely than not that claim 1 is literally infringed and that the patent is valid. The decision's headnote concerns urgency: the moment at which the applicant was able physically to obtain and examine the accused product is the relevant date, provided that earlier information such as drawings did not allow it to determine with sufficient certainty whether the product infringes. Applying the Court of Appeal's framework, the Court held that a respondent invoking delay must show both that the accused product is essentially identical to an earlier available product as regards the patent in suit and that the earlier product gave reasonable cause to investigate; a blanket assertion of 'identical construction' without reference to the concrete claim features does not meet that standard. The Court also confirmed that a patentee is under no general market-monitoring duty and is not obliged to assert all potentially relevant patents against one embodiment, expressly preferring the Court of Appeal's position over the OLG Düsseldorf's Insulinpumpe line. Passive standing of the EU authorised representative under Art. 11 of the Medical Devices Regulation was affirmed by analogy to an online service provider, and the pending CJEU reference on that very question was met not with a stay but with an order for security covering the risk that the first-instance ruling is later reversed.