Boehringer Ingelheim International v Zentiva Portugal (CoA, 13 August 2025)
| Date | 13 August 2025 |
|---|---|
| Court | CoA |
| Division | Luxembourg (LU) |
| Type of action | Appeal RoP220.1 |
| Registry reference | APL_24205/2025 · ORD_33516/2025 |
| Parties | BOEHRINGER 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.
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
- The Court draws a clear line between a marketing authorisation, which is insufficient, and pricing and reimbursement procedures, which may establish the threat (paragraphs 47 and 48).
- Taking part in a public procurement procedure, even at the pre-contractual stage, is an offer within Art. 25 UPCA (paragraphs 64 to 69).
- The injunction extends to every state where the patent has effect, regardless of where the generic company holds authorisations (paragraph 91).
- Practical point: for the patentee, publication of the pricing and reimbursement approval starts the urgency clock, for the generic company, relying on its own restraint offers no protection against an injunction.
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
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
UPC_CFI_41/2025Parties
- claimantBOEHRINGER INGELHEIM INTERNATIONAL GMBH6 decisions in the corpusFollow this party
- defendantZENTIVA PORTUGAL, LDA8 decisions in the corpusFollow this party
Decisions in the same proceedings and documented appeals
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
EP 1 830 843mentioned in: Dhenne Avocats analysis Follow this patent
Related decisions cited in the analyses
- Boehringer Ingelheim International v Zentiva Portugal (CFI, 8 May 2025) cited in this record
- Mammut Sports Group v Ortovox Sportartikel (CoA, ORD_44387/2024, 25 September 2024) cited in this record
- Heraeus Electronics v Vibrantz (CoA, 16 September 2026) cites this decision
- Cilag GmbH International v RiVOLUTiON (CFI, 25 August 2026) cites this decision
- SharkNinja Operating v Groupe SEB France (CoA, 21 August 2026) cites this decision
- Knaus Tabbert v Yellow Sphere Innovations (CoA, 17 August 2026) cites this decision
- CYBEX v NUNA International (CFI, 10 August 2026) cites this decision
- Evac v Shanghai VacDrain Vaccuum Drainage Equipment (CFI, 22 June 2026) cites this decision
- Merz Pharmaceuticals v Viatris Santé (CoA, 27 April 2026) cites this decision
- Abbott Diabetes Care v Sinocare (CoA, 17 April 2026) cites this decision
- Dyson Technology v Dreame International (Hongkong) (CFI, 7 April 2026) cites this decision
- Sinocare v Abbott Diabetes Care (CoA, 30 March 2026) cites this decision
- ONWARD Medical v Niche Biomedical (CoA, 27 March 2026) cites this decision
- Hewlett-Packard Development v Andreas Rentmeister e.K. (CFI, 19 December 2025) cites this decision
- Hewlett-Packard Development Company v Zhuhai ouguan Electronic Technology (CFI, 28 November 2025) cites this decision
- Occlutech v Lepu Medical Technology (Beijing) (CFI, 21 October 2025) cites this decision
- Hewlett-Packard Development v Andreas Rentmeister (CFI, 17 October 2025) cites this decision
- bellissa HAAS v Windhager (CFI, 12 September 2025) cites this decision
- Hewlett-Packard Development v Zhuhai ouguan Electronic Technology (CFI, 3 September 2025) cites this decision
- Cilag GmbH International v RiVOLUTiON (CFI, 29 August 2025) cites this decision
- Boehringer Ingelheim International v Zentiva Portugal (CFI, 10 April 2026) cites this decision
Patents and standards
| Publication | Role in the dispute | Family | Standard and declaration | Pool | Sources |
|---|---|---|---|---|---|
EP 1 830 843 | Mentioned 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 recorded | not recorded | not recorded | Espacenet links not checked mentioned in: Dhenne Avocats analysis |
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