UPC Local Division: Imminent Infringement

Under the UPCA, the Court must independently determine the criteria that must be met for an infringement to exist. The question to be answered is whether the defendants’ conduct indicates with a high degree of probability that they intend to enter the market without further preconditions during the term of the patent. The applicants are not required to tolerate a situation that would, in 2024, necessitate renegotiation of their contracts with their customers for their own product or impair their ability to negotiate new contracts in 2025. Such a situation would certainly arise if a concrete offer of the challenged embodiment were made on the market, which would constitute direct infringement. It suffices for an offer if the conduct in question actually creates a demand for the product that the offer is likely to satisfy. In the present case, this would be an advertisement indicating that the defendants could, subject to compliance with all regulatory measures applicable in the medical market of the Contracting Member States, including providing a specific price, supply a product if a potential customer were to place an order. Potential customers in the pharmaceutical industry tend to view statements about a future market entry as vague announcements if regulatory measures and pricing or reimbursement conditions have not yet been finalized. For an infringement to be imminent here, it means that all preparations for the product launch must be sufficiently completed so that an offer can be made at any time. Instead of considering individual events in isolation, an overall assessment of the activities is required. At the time of the Court’s decision, there was insufficient evidence that infringement was immediately impending (Local Division Düsseldorf, 6 September 2024, Court of First Instance 165/2024).