2026-09-01 - LD Düsseldorf - Aesculap v. Shanghai Bojin Medical Instrument et al. - UPC_CFI_307/2025

The Düsseldorf Local Division held that an EU authorised representative under Art. 11 of the Medical Devices Regulation is liable as an intermediary under Art. 63(1) sentence 2 UPCA, although it commits no act of use and is not an accomplice. The accused surgical cutting tools use the technical teaching of the patent literally, but the representative's own importing and distribution were not substantiated once denied, and a CE conformity declaration is only a preparatory act, so neither Art. 25 UPCA liability nor liability as accomplice, instigator or aider arises. The term intermediary is not confined to providers of intermediary services under the Digital Services Regulation: what matters is that the person does not use the patented subject matter itself but supplies a service used for the infringement, creating a condition for the infringer's act. An EU representative is indispensable to lawful distribution in the Union, can end that distribution by terminating its services, and how well it performs its regulatory duties is irrelevant. The injunction therefore restrains the provision of those representative services, and because the patent also covers the United Kingdom the orders for that territory are made under the suspensive condition that the United Kingdom part is not declared invalid.