UPC Court of Appeal: Executive liability in the context of infringement

An "infringer" within the meaning of Art. 63 UPCA in conjunction with Art. 25 UPCA is also a person who does not personally carry out the acts referred to in Art. 25 UPCA but to whom the acts of a third party are attributable because they are an instigator, co-perpetrator or accessory. Who qualifies as an instigator, co-perpetrator or accessory in this sense is determined on the basis of an autonomous interpretation of Art. 63 UPCA and Art. 25 UPCA. The mere position of managing director does not make the managing director a co-perpetrator or accessory to a patent infringement by the company. The managing director can only be held liable if the contested action of the managing director goes beyond the typical professional duties of a managing director. This applies in particular in cases where the managing director deliberately uses the company to commit patent infringements. However, this also applies when the managing director knows that the company is committing a patent infringement and – although it is possible and reasonable for him/her to do so – fails to take action to stop the infringement. Knowledge of a patent infringement does not merely require that the managing director is aware of the circumstances from which a patent infringement arises. Rather, as with any accessory, awareness of the unlawfulness of the act of use is additionally required. If the managing director seeks legal advice on the question of a patent infringement, he/she may generally rely on that advice until a first-instance decision has been issued establishing that his company has committed a patent infringement (UPC 3 October 2025; CoA 534/2024,CoA 19/2025,CoA 683/2024).