Aesculap v Shanghai Bojin Medical Instrument (CFI, 1 September 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In a decision on the merits of 1 September 2026 (UPC_CFI_307/2025), the Düsseldorf Local Division ruled on Aesculap AG’s infringement action on EP 2 892 442 (a surgical torque-transmitting instrument) against the only defendant left after a settlement with the other two: Shanghai International Holding Corporation GmbH (Europe), the manufacturer’s EU authorised representative under Article 11 of Regulation (EU) 2017/745. The decision settles several useful points: a party’s absence from the oral hearing does not prevent a decision on the merits, jurisdiction based on a Hamburg seat extends to acts in the United Kingdom, and the word « vorzugsweise » makes the wedge shape of the claimed flats optional. The action succeeded in part (paragraph 42): the defendant is neither a direct infringer nor a participant, but is liable as an intermediary (paragraph 54). The Division ordered the defendant to stop providing its authorised representative services for the burrs in Germany, France and, subject to a condition precedent, the United Kingdom, ordered information limited to the first two States, refused to stay pending the Court of Justice and split the costs equally.

Facts and procedure

Aesculap complained of two surgical burrs, the « Bojin-Diamantfräser » and the « Bojin-Rosenfräser », marketed in Germany, France and the United Kingdom. Provisional measures had been ordered against defendant 2 for Germany and France on 10 July 2025 (UPC_CFI_213/2025) (paragraphs 14 and 15). Extension of the action to a third defendant and to the second product was admitted under Rule 263 RoP (paragraphs 16 to 18). After the hearing of 17 June 2026, Aesculap settled with defendants 1 and 3, the settlement was confirmed on 27 August 2026 and the action continues against defendant 2 (paragraphs 19 and 20). That defendant, duly summoned, did not attend the hearing. It argued that it only performed regulatory tasks as authorised representative (CE marking, post-market surveillance), without manufacturing, importing or selling (paragraph 32).

The applicable law

Under Rule 116.3 RoP, a party not represented at the hearing is treated as relying on its written pleadings. The panel told Aesculap it could seek a decision by default (Rules 116.5 and 355 RoP), but Aesculap did not insist, so a decision on the merits was given (paragraphs 43 to 45). On jurisdiction, the defendant neither challenged it nor relied on an opt-out (paragraphs 47 and 51), in any event the UPC, as a common court under Article 71a of Regulation 1215/2012, has jurisdiction under Article 4(1) of that Regulation over a company seated in Hamburg, without territorial limitation to the Contracting Member States, so acts in the United Kingdom need not be examined at that stage (paragraphs 49 and 50). Claims are construed under Art. 69 EPC and its Protocol: the description and drawings are always used, and the claim is not a mere guideline (paragraph 73).

Question

Can the EU authorised representative of a manufacturer of infringing medical devices, absent from the hearing, be held liable on the merits, including for the United Kingdom, and on what basis?

Decision

Both products literally use claim 1 (paragraphs 53, 55 and 98 to 106). « Vorzugsweise » qualifies the converging of the flats, so the claim also covers parallel flats. The German claim text is authoritative under Art. 70(1) EPC (paragraphs 86 to 93). A blanket reference to the pleadings in the provisional measures proceedings fails under Rule 24(g) RoP (paragraph 96). Defendant 2 is not an infringer under Art. 25 UPCA: Aesculap did not substantiate, in the face of its denial, the importing and selling it alleged, and the CE declaration of conformity alone, a mere preparatory act, does not make it a joint tortfeasor, instigator or accessory (paragraphs 107 to 111). It is however liable as an intermediary under the second sentence of Art. 63(1) UPCA: the concept is not limited to providers of intermediary services under Regulation (EU) 2022/2065 and covers anyone who, without using the invention, provides a service used for the infringement and can influence it, with no breach of a duty of care required, the authorised representative under Article 11 of Regulation 2017/745 is indispensable for lawful marketing of the devices in the EU and can end it by terminating its services (paragraphs 112 to 117).

For Germany and France, the Division granted an injunction and information from 11 July 2018 (Arts. 63(1) and 67(2)(b) UPCA), subject to penalties of up to EUR 10,000 per product or EUR 30,000 per day (paragraphs 118 to 124). For the United Kingdom, following Kodak v Fujifilm and Fujifilm v Kodak, the injunction is subject to the condition precedent that the UK part of the patent is not invalidated. Infringement there is governed by UK law (Art. 8 Rome II Regulation), which allows an injunction against an intermediary but not, on Aesculap’s submissions, information orders against it, nor its classification as an infringer (paragraphs 125 to 138). Costs are split equally, no security is required and the ceiling for recoverable costs is EUR 112,000 for a value of EUR 1,000,000 (paragraphs 139 to 142). The Court of Appeal’s referral to the Court of Justice in Dyson v Dreame does not warrant a stay: it was made in summary proceedings and concerns the product safety and market surveillance regulations, not Regulation 2017/745 (paragraphs 143 to 149).

Key points for practice

• A party’s failure to appear does not force a default decision: the claimant may obtain a decision on the merits based on the written pleadings (paragraphs 43 to 45).
• A seat in a Member State is enough to found the UPC’s long-arm jurisdiction, including for the United Kingdom (paragraphs 49 and 50).
• The authorised representative under Article 11 of Regulation 2017/745 is an intermediary under Art. 63(1) UPCA, with no fault required, but the CE declaration alone does not make it an infringer (paragraphs 111 to 117).
• Practical point: against an EU authorised representative, the claimant must substantiate acts of importing or selling to obtain more than an injunction, and must establish the applicable foreign law for orders covering the United Kingdom (paragraphs 109 and 138).

Provisions applied

Agreement on a Unified Patent Court

Arts. 24(2)(a), 25, 26, 32(1), 47(1), 63, 67, 69(1) and 82

Rules of Procedure

Rules 8.5, 19, 19.7, 24(g), 116.3, 116.5, 118.4, 118.5, 118.8, 263, 295(i) and (m), 352.1, 354.4 and 355

European Patent Convention

Art. 69 and Protocol on its interpretation, Art. 70(1)

Regulation (EU) No 1215/2012

Arts. 4(1), 71a and 71b(1)

Other provisions

Regulation (EU) 2017/745 on medical devices, Art. 11, Regulation (EC) No 864/2007 (Rome II), Art. 8, UK Patents Act 1977, sections 60 and 61

Case law cited

Occlutech v Lepu, Court of Appeal, 18 June 2026 (UPC_CoA_907/2025), NUC v Hurom, Court of Appeal, 27 March 2026 (UPC_CoA_409/2025), Dyson v Dreame, Court of Appeal, 6 March 2026 (UPC_CoA_789/2025 and UPC_CoA_813/2025), Kodak v Fujifilm, Court of Appeal, 2 June 2026 (UPC_CoA_312/2025 and UPC_CoA_880/2025), Fujifilm v Kodak, Court of Appeal, 13 July 2026 (UPC_CoA_473/2025), 10x Genomics v Nanostring, Court of Appeal, 26 February 2024 (UPC_CoA_335/2023), VusionGroup v Hanshow, Court of Appeal, 13 May 2024 (UPC_CoA_1/2024), Mammut v Ortovox, Court of Appeal, 25 September 2024 (UPC_CoA_182/2024), Belkin v Philips, Court of Appeal, 3 October 2025 (UPC_CoA_534/2024), Dyson v Dreame, Hamburg Local Division, 14 August 2025 (UPC_CFI_387/2025), Occlutech v Lepu, Hamburg Local Division, 21 October 2025 (UPC_CFI_553/2025), Moderna v Genevant, The Hague Local Division, 23 May 2025 (UPC_CFI_191/2025 and UPC_CFI_192/2025), Koninklijke Philips v Belkin, Munich Local Division, 13 September 2024 (UPC_CFI_390/2023)

Related decisions

• Aesculap v Shanghai Bojin, 27 August 2026, order confirming the settlement with defendants 1 and 3.

Prepared by Dhenne Avocats from the official decision, consulted on 10 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.