Aesculap v Shanghai Bojin Medical Instrument (CFI, 16 October 2026)

Dhenne Avocats · 17 October 2026

Our analysis

Summary

By an order of 16 October 2026 (UPC_CFI_307/2025), the Düsseldorf Local Division dismissed Aesculap’s application to rectify its decision on the merits of 1 September 2026 concerning EP 2 892 442 B1. The claimant sought to turn the condition precedent attached to the measures ordered for the United Kingdom into a condition subsequent.

Question

Can the rectification procedure under Rule 353 RoP be used to change the nature of a condition attached to measures ordered by the Court?

Decision

The decision of 1 September 2026 had, among other things, granted an injunction against the second defendant for Germany, France and the United Kingdom. On 29 September 2026, Aesculap applied to rectify point I of the operative part and paras 125(a) and 126 of the grounds, relying on two Court of Appeal decisions. Filed within one month of service, the application was admissible (para. 7). It failed on the merits. Rule 353 RoP covers only clerical errors, errors in calculation and obvious slips, and the passages at issue reflect the Court’s intention, with no translation error (paras 8 and 9). Replacing ‘condition precedent’ with ‘condition subsequent’ would not in any case achieve the desired result, since the condition adopted by the Court of Appeal turns on the absence of a finding that the patent is invalid, and whether the decision is consistent with that case law is not a matter for rectification proceedings (paras 10 to 12).

Key points for practice

• Rectification cannot be used to revisit a deliberate choice made by the Court, even where Court of Appeal case law is invoked in support.
• A challenge on the merits to the conditions attached to the UK measures therefore cannot take this route, whatever the admissibility of the application.

Provisions applied

Rules of Procedure

Rule 353 RoP

Case law cited

Court of Appeal, UPC_CoA_312/2025, and Court of Appeal, 13 July 2026, Fujifilm v Kodak (UPC_CoA_473/2025), both relied on by the claimant

Related decisions

• Aesculap v Shanghai Bojin Medical Instrument, 1 September 2026, the decision on the merits whose rectification was sought.
• Aesculap v Shanghai Bojin Medical Instrument, 27 August 2026, an earlier decision between the same parties.

Prepared by Dhenne Avocats from the official decision, consulted on 17 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.