Biolitec Holding v Light Guide Optics Germany (CoA, 24 February 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 24 February 2025 (UPC_CoA_540/2024, APL_52692/2024), the Court of Appeal (Judges Grabinski, presiding, Blok, Gougé, rapporteur, Augarde and Tilmann) dismissed Biolitec Holding’s appeal against the refusal of provisional measures sought against Light Guide Optics Germany and S.I.A. LIGHTGUIDE International on the basis of the European patent with unitary effect EP 3 685 783. Biolitec bears the costs of the appeal.

The court treats necessity as a free-standing substantive requirement: summary proceedings are available only where the decision on the merits cannot be awaited, and the balance of interests includes the time factor. For a proprietor acting against a competing product sold for several years before grant, the bar is high.

Facts and procedure

Grant of the patent was published on 17 July 2024, Light Guide Optics Germany filed an EPO opposition on 19 July. On 14 August 2024 Biolitec applied to the Düsseldorf Local Division for provisional measures against the « Infinity Side Fiber », a single-use laser fibre. By the Düsseldorf Local Division’s order of 5 September 2024, made without hearing the defendants, the division dismissed the application and granted leave to appeal. On appeal, Biolitec sought an injunction in 17 Member States, alternative relief tied to the MEDICA 2024 trade fair, penalty payments and delivery of products to a bailiff. The respondents sought dismissal and, in the alternative, security of EUR 1,000,000. The judge-rapporteur confined the summons to the hearing of 23 January 2025 to the issue of necessity.

The applicable law

The court relied on Art. 62(2) and (4) UPCA and Rules 206.2(c) and 211 RoP. The necessity requirement, more than a mere formality, goes to the merits and is assessed under Rule 211 (paragraph 20). The court weighs the harm to each party together with the time factor, asking whether the merits decision can be awaited (paragraphs 18 and 19), irreparable harm is not required, although delay that would cause it makes measures necessary (paragraph 21). The court found this reading consistent with Art. 9 of Directive 2004/48/EC and the CJEU judgment of 28 April 2022 in Phoenix Contact (C-44/21) (paragraph 22).

Question

Are provisional measures necessary where the allegedly infringing product, which can substitute for the proprietor’s product, has been on the market since 2021, several years before the patent was granted?

Decision

No. Direct competition is relevant but not sufficient: the measures would alter a market position established well before grant, and Biolitec had not shown any purpose that could not await the merits decision (paragraphs 26 and 27). The court distinguished Mammut v Ortovox, Court of Appeal, 25 September 2024, where a new product was entering the market and the measures preserved the prior position (paragraph 28). The absence of findings by the division on validity, entitlement and infringement did not prejudice Biolitec (paragraph 24).

The circumstances relied on were rejected one by one: display of the product at MEDICA 2024 was not established with sufficient certainty (paragraphs 31 to 35), a witness’s personal estimate of the respondents’ stock at 120,000 units a year was unsupported (paragraphs 36 to 42), the allegations about tenders were speculative (paragraphs 43 to 48). The price erosion argument, first raised at the appeal hearing, and the extension of the request to MEDICA 2025 were disregarded under Rule 222.2 (paragraphs 49 to 54).

Key points for practice

• Necessity can be examined first and may on its own defeat the application, without the court ruling on validity or infringement.
• The time factor weighs heavily where the targeted product has been on the market since before grant: the proprietor must show a need that cannot await the merits.
• New facts and extended requests put forward at the appeal hearing run up against Rule 222.2.
• Practical point: the application must be supported, from first instance, by concrete and dated evidence (trade fairs, stock, tenders, prices), an undocumented witness estimate will not do.

Provisions applied

Agreement on a Unified Patent Court

Art. 62(2) and (4)

Rules of Procedure

Rules 206.2(c), 211 and 222.2

Directive 2004/48/EC

Art. 9

Case law cited

Mammut v Ortovox, Court of Appeal, 25 September 2024 (UPC_CoA_182/2024), NanoString v 10x Genomics, Court of Appeal (UPC_CoA_335/2023).

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.