Bioletic Holding v Light Guide Optics Germany (CFI, 5 September 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 5 September 2024 (UPC_CFI_486/2024, ACT_47064/2024), the Düsseldorf Local Division (R. Thomas, presiding, A. B. Thom, judge-rapporteur, M. Mlakar) dismissed, without hearing the respondents or holding an oral hearing, Bioletic Holding GmbH & Co. KG’s application for provisional measures against Light Guide Optics Germany GmbH and S.I.A. LIGHTGUIDE International, based on EP 3 685 783 for an optical fibre used in the endoluminal treatment of venous insufficiency.

The interest of the order lies in the necessity requirement: the division refuses the measures because no particular circumstances show that a title obtained on the merits would not protect the applicant, without examining validity or infringement. It also orders the unsuccessful applicant to bear the costs and grants leave to appeal.

Facts and procedure

The patent, which stems from a third divisional application, was granted on 17 July 2024, and the respondents have filed an opposition. The accused product is the « Lightguide Infinity Side Fiber ». The application, filed on 14 August 2024, sought a decision after hearing the respondents. By orders of 15 and 21 August 2024, the judge-rapporteur invited the applicant to supplement its submissions on urgency and necessity, then found them still insufficient. On 23 August 2024 the applicant declined to withdraw its application and argued that the division could decide on the file.

The applicable law

Rule 206.2(c) RoP requires the reasons why provisional measures are necessary to be set out, and Rule 211.3 RoP requires account to be taken of the harm to the applicant, weighed against that of the respondents. Rules 209.1 and 209.2 RoP leave the choice of procedure to the division: whether to invite the respondent to comment and whether to hold an oral hearing.

Question

May the division dismiss an application for provisional measures without hearing the respondents, and when are such measures objectively necessary?

Decision

Dismissal without hearing the respondents does not infringe their right to be heard, since they suffer no detriment, and a hearing with the applicant alone would be an unnecessary formality, as nothing beyond repetition could be expected. The division relies on procedural economy and the Preamble to the Rules (section I).

Measures are necessary where particular circumstances prevent the applicant’s interests from being met by a title on the merits (section II). The respondents’ presence at the MEDICA fair in November 2024 is speculative, the evidence concerning 2023 exhibitions, and the applicant could have sent a warning letter. The witness statement on possible stockpiling by a French distributor gives no period or consumption rate for single-use devices, and a general reference to tenders is insufficient. Neither exorbitant harm nor lasting customer lock-in is shown. The division distinguishes the Munich order in Hand Held Products v Scandit, which involved a much greater loss of market share. Costs are imposed on the applicant by analogy with Rule 118.5 RoP, as there will be no action on the merits in which to decide them (section III).

Key points for practice

• The division may dismiss an application for provisional measures without hearing the respondent or holding a hearing, even where the applicant asked for inter partes proceedings.
• Necessity requires concrete circumstances, such as exorbitant harm or a lasting loss of customers, for which the recent grant of the patent is no substitute.
• An unsuccessful applicant bears the costs by analogy with Rule 118.5 RoP.
• Practical point: an application for provisional measures should document the risk precisely, for instance stock volumes, confirmed attendance at a trade fair or identified tenders.

Provisions applied

Rules of Procedure

Preamble, point 4, and Rules 118.5, 206.2, 209, 211.3 and 213.1

Case law cited

NanoString v 10x Genomics, Munich Local Division, 19 September 2023 (UPC_CFI_2/2023), Ortovox v Mammut, Düsseldorf Local Division, 9 April 2024, 10x Genomics v Curio Bioscience, Düsseldorf Local Division, 30 April 2024, Hand Held Products v Scandit, Munich Local Division, 27 August 2024 (UPC_CFI_74/2024), The Hague Local Division, 31 July 2024

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.