Opens in a new tab

Boehringer Ingelheim International v Zentiva Portugal (CoA, 13 August 2025)

Date13 August 2025
CourtCoA
DivisionLuxembourg (LU)
Type of actionAppeal RoP220.1
Registry referenceAPL_24205/2025 · ORD_33516/2025
PartiesBOEHRINGER INGELHEIM INTERNATIONAL GMBH v. ZENTIVA PORTUGAL, LDA

Official decision (PDF) · UPC registry entry

Dhenne Avocats represents claimants and defendants in European patent disputes before the Unified Patent Court, including the Paris divisions.

Contact the firm

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 13 August 2025 on the appeal (UPC_CoA_446/2025) and cross-appeal (UPC_CoA_520/2025) against the order of the Lisbon Local Division of 8 May 2025 (UPC_CFI_41/2025), the Court of Appeal (Presiding Judge Kalden, Judge Simonsson as judge rapporteur, Judge Rombach and Technical Judges Gustafsson and Wagner) reversed the refusal of provisional measures and enjoined Zentiva Portugal, in the seventeen states where EP 1 830 843 has effect, from any exploitation of nintedanib products for idiopathic pulmonary fibrosis. The Court held that applying for or obtaining a marketing authorisation does not in itself amount to imminent infringement, whereas completion of national pricing and reimbursement procedures may. The ruling is of direct concern to generic companies preparing entry before patent expiry.

Facts and procedure

Boehringer Ingelheim markets Ofev in Portugal. The patent, directed to a second medical use, was due to expire on 21 December 2025. Zentiva obtained Portuguese marketing authorisations for generics on 30 August 2024, followed by approval under the prior evaluation procedure (PEP) for pricing and reimbursement, made public by INFARMED on 12 December 2024. Boehringer applied to the Lisbon division on 23 January 2025, the division dismissed the application for lack of imminent infringement and ordered it to pay EUR 92,944.15 in interim costs. A Boehringer group company had also obtained a Portuguese injunction on 25 March 2025 based on a supplementary protection certificate.

The applicable law

The Court applied Arts. 25, 27(d), 34, 62 and 67 UPCA, the Bolar exemption in Art. 10(6) of Directive 2001/83, and Rules 191, 206, 211.4, 213, 222 and 354.3 RoP. Portuguese medicines and public procurement law was taken into account as a source under Art. 24 UPCA, its content to be proven by the parties (paragraph 72).

Question

Does approval of pricing and reimbursement for a generic, without actual marketing, amount to imminent infringement justifying provisional measures?

Decision

Yes, on the facts. Both parties’ late evidence was excluded (Rule 222 RoP) and the Portuguese injunction, based on another right and limited to Portugal, did not remove the need for measures (paragraphs 39 to 43). Infringement is imminent where preparations are complete and only the act remains, which the applicant must show to be more likely than not (paragraphs 44 to 46). A marketing authorisation is not enough (paragraph 47), completion of health technology assessment, pricing and reimbursement procedures may be, depending on the national context (paragraph 48). The PEP allows Zentiva to respond without further formality to public hospital tenders, direct awards and consultations, acts that would be an infringing offer. Only its self-restraint holds it back, which is not enough (paragraphs 64 to 81). Lasting price erosion justifies the measure (paragraphs 82 to 85), time runs from 12 December 2024 and the application was not late (paragraphs 86 to 89). The injunction, backed by a penalty of up to EUR 10,000 per package, covers all states where the patent has effect, even without marketing authorisations outside Portugal (paragraphs 90 and 91). The request for information was refused as no infringement had yet occurred (paragraph 94). Zentiva bears the costs of both instances, including the cross-appeal, and must pay EUR 199,000 as an interim award (paragraphs 95 to 97).

Key points for practice

Provisions applied

Agreement on a Unified Patent Court
Arts. 24, 25, 27(d), 34, 62, 67, 73 and 76
Rules of Procedure
Rules 9.2, 118.2, 191, 206.2, 209.2, 211.2, 211.4, 213, 220.2, 221.1, 222 and 354.3
Other provisions
Directive 2001/83/EC, Art. 10(6), Directive 2001/82/EC, Art. 13(6), Portuguese Decree-Law 97/2015, Portuguese Public Contracts Code
Case law cited
Sumi Agro v Syngenta, Court of Appeal, 3 March 2025 (UPC_CoA_523/2024), Mammut v Ortovox, Court of Appeal, 25 September 2024 (UPC_CoA_182/2024)

Related decisions

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.


Going further

Lexicon: UPC Court of Appeal.

Dhenne Avocats blog: UPC Appeals: What the Numbers Show.

Source and translations

Official source
Unified Patent Court registry link recorded in the record
Original language
not recorded
Translation available
no translation recorded the firm’s French record is a summary, not a translation
Date checked
not recorded
Only the official text is authoritative. A machine translation is never presented as official, republishing a third-party document requires a verified basis in rights, and a link to the source is preferred.

Follow this case

Proceedings, related decisions, appeals, parties and patents as recorded in the registry and in the Dhenne Avocats corpus. Each link states its source.

Proceedings

No case number recorded in this record.
First instance cited in the decision: UPC_CFI_41/2025

Parties

Exact name as it appears in the record, group affiliation only where sourced and dated.

Decisions in the same proceedings and documented appeals

No other decision in the corpus bears the same case number, and no appeal is documented in the corpus to date.

What the record states

Nature of the act
Appeal RoP220.1
Outcome (Dhenne Avocats summary)
La cour d'appel infirme le refus de mesures provisoires et interdit à Zentiva toute exploitation de nintedanib dans les dix-sept États où le brevet produit effet, sous astreinte, la demande d'informations étant rejetée.
Appeal
Decision of the Court of Appeal (first instance cited: UPC_CFI_41/2025).
Instance
Court of Appeal decision.

Patents mentioned

Related decisions cited in the analyses

Scope: Dhenne Avocats corpus. Registry-based links are marked “official number”; links derived from the analyses are marked as such. An erroneous link can be withdrawn without deleting any record.

Patents and standards

PublicationRole in the disputeFamilyStandard and declarationPoolSources
EP 1 830 843Mentioned in the analysis (role not qualified)
Also mentioned in 4 other decision(s): Boehringer Ingelheim International v Zentiva Portugal (CFI, 10 April 2 · Gowling WLG v Boehringer Ingelheim International (CoA, 24 February 202 · Boehringer Ingelheim Internati v Zentiva Portugal (CFI, 17 November 20 · Boehringer Ingelheim International v Zentiva Portugal (CFI, 8 May 2025
not recordednot recordednot recordedEspacenet
links not checked
mentioned in: Dhenne Avocats analysis
The statuses “asserted in litigation”, “declared essential”, “listed by a pool” and “essentiality examined by a court” are distinct and may coexist. Validity, infringement and technical essentiality are different questions. Scope: patents cited in the decisions of the Dhenne Avocats corpus, with no essentiality score or prediction.

Receive an alert

Weekly summary of new records and substantive updates matching what you follow. Address confirmed by email, unsubscribe at any time, one email per week even where several of your follows match.

Follow

Weekly summary, on Fridays.