Cilag GmbH International v RiVOLUTiON (CFI, 25 August 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 25 August 2026 (UPC_CFI_1535/2026), the Hamburg Local Division ruled on Cilag GmbH International’s application for provisional measures based on EP 2 615 984 (a battery-powered surgical stapling instrument) against RiVOLUTiON, distributor of the « EnDrive Orca » and « EnDrive Zero » staplers, and against Shanghai International Holding Corporation GmbH (Europe), the Chinese manufacturers’ EU authorised representative under Article 11 of Regulation (EU) 2017/745. The application was held admissible and well-founded (paragraph 51). The headnote states that, for urgency, what matters is when the applicant could physically obtain and examine the product, where earlier information such as drawings did not allow infringement to be assessed with sufficient certainty. The Division prohibited the distributor from offering and selling in Germany and ordered the authorised representative to stop providing its services for these products in Germany, France and Italy, subject to penalties of up to EUR 250,000 per infringement, the order is immediately enforceable against the distributor but, as regards the authorised representative, conditional on security of EUR 1 million provided by Cilag, because of the reference pending in Dyson v Dreame.

Facts and procedure

As RiVOLUTiON did not supply a sample, Cilag ordered the products on 20 February 2026, received them on 6 March 2026, completed its analysis on 9 April 2026 and filed its application on 4 May 2026 (paragraphs 17 and 18). Earlier proceedings between the parties on other patents had ended in a settlement in October 2025 (paragraphs 13 to 16). Cilag sought an injunction in Germany against the distributor and, against the authorised representative, an order to stop providing its services for Germany, France and Italy, with penalty payments (paragraph 19). The defendants sought dismissal or, alternatively, security of at least EUR 5,000,000, together with a stay and a CJEU reference on whether an authorised representative can be an intermediary (paragraph 20). The oral hearing took place on 7 July 2026.

The applicable law

Jurisdiction rests on Art. 31 UPCA and Arts. 7(2) and 71b(1) of Regulation 1215/2012, online accessibility of offers in the state concerned being capable of sufficing (paragraphs 52 to 55). Validity must be sufficiently certain, which is not the case if invalidity is more likely than not (paragraphs 112 and 113). Inventive step follows the Court of Appeal’s approach: from a realistic starting point, would the skilled person have arrived, and not merely could they have arrived, at the claimed solution (paragraphs 120 to 125)?

Question

May provisional measures be ordered against the distributor and the manufacturer’s EU authorised representative, and from when is urgency assessed where the product could only be examined after it was acquired?

Decision

Standing is presumed from the registers (Rule 8.5 RoP) (paragraphs 56 and 57). The authorised representative is a proper defendant: without it, the products could not be placed on the EU market, which makes its role comparable to that of an online service provider (paragraph 58, referring to Dyson v Dreame). Both products literally infringe claim 1 on a summary assessment (paragraphs 59 to 111). The objection under Art. 53(a) EPC fails: single-use products are common in surgery and the patent addresses the safe disposal of partly charged batteries (paragraphs 115 to 119). The ZEMLOK and WALKER combination, and the WALKER, WAKIKAIDO and MANN combination, do not deprive the claim of inventive step, the need for three documents being a strong indication of non-obviousness (paragraphs 126 to 160), MANN in any event teaches a mechanism that stops discharge when the cassette is removed, the opposite of the invention (paragraphs 158 and 159).

The balance of interests favours Cilag: the defendants showed no harm beyond that inherent in an injunction, whereas the products are copies and threaten the orders and market share of the applicant’s group (paragraphs 161 to 164). There was no undue delay: the defendants did not make it credible that the attacked products were in substance the same as the earlier « EnDrive Beluga » model, nothing required the latter to be checked against the patent, the proprietor has no general duty to monitor the market, and the application was filed less than two months after receipt of the products, the drawings supplied not having allowed a finding of infringement, leaving the patent out of the October 2025 settlement is irrelevant (paragraphs 165 to 182). The measures are limited to the States requested (Art. 34 UPCA, paragraphs 183 to 189). Neither a stay nor a separate reference was ordered, but the risk arising from the question pending before the CJEU in Dyson v Dreame justifies security equal to the value of the dispute in favour of the authorised representative only, the distributor having shown no specific harm (paragraphs 190 to 194). An interim award of costs of EUR 56,000, half the ceiling for a value of EUR 1 million, was granted, and the costs were awarded against the defendants (paragraphs 195 to 204). The brief filed three days after the hearing was inadmissible, counsel being expected to follow recent Court of Appeal case law (paragraphs 205 to 209).

Key points for practice

• The EU authorised representative of a non-EU manufacturer may be targeted by provisional measures (paragraph 58).
• The defendant’s refusal to supply a sample and the time needed to acquire the product are taken into account when assessing urgency, drawings not sufficing where only physical examination allows a conclusion (paragraphs 176 to 181).
• Having to combine three documents to reconstruct the invention is a strong indication of non-obviousness (paragraph 152).
• Practical point: record precisely when the accused product was obtained and analysed, against an EU authorised representative, security may be required until the CJEU has ruled on whether it can be an intermediary (paragraphs 190 to 194).

Provisions applied

Agreement on a Unified Patent Court

Arts. 21, 25(a), 31, 32(1)(c), 34, 60(7), 62(1), (2) and (5), 63(1) and (2) and 67

Rules of Procedure

Rules 8.5, 206.1, 206.2, 209.2, 211.1, 211.2, 211.3, 211.4, 211.5 and 354.3

European Patent Convention

Art. 53(a), 56 and 69 and Protocol on its interpretation

Regulation (EU) No 1215/2012

Arts. 7(2) and 71b(1)

Other provisions

TFEU, Art. 267, Regulation (EU) 2017/745, Art. 11(1)

Case law cited

AYLO v DISH, Court of Appeal, 3 September 2024 (UPC_CoA_188/2024), Onward v Niche, Court of Appeal, 27 March 2026, NanoString v 10x Genomics, 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), SharkNinja v Dyson, Court of Appeal, 3 December 2024 (UPC_CoA_297/2024), Boehringer v Zentiva, Court of Appeal, 13 August 2025 (UPC_CoA_446/2025), Meril v Edwards, Court of Appeal, 25 November 2025 (UPC_CoA_464/2024), Amgen v Sanofi, Court of Appeal, 25 November 2025 (UPC_CoA_528/2024), Dyson v Dreame, Court of Appeal, 6 March 2026 (UPC_CoA_789/2025 and UPC_CoA_813/2025), Align v Angelalign, Düsseldorf Local Division, 12 February 2026 (UPC_CFI_723/2025), Insulet v EOFlow, Court of Appeal, 30 April 2025 (UPC_CoA_768/2024), Munich Local Division, 22 August 2025 (UPC_CFI_248/2024), Munich Central Division, 16 July 2024 (UPC_CFI_1/2023), Paris Central Division, 5 November 2024 (UPC_CFI_309/2023), Biolitec v Light Guide, Court of Appeal (UPC_CoA_540/2024), Sumi Agro v Syngenta, Court of Appeal, 3 March 2025 (UPC_CoA_523/2024), Guardant Health v Sophia Genetics, Court of Appeal, 2 July 2026 (UPC_CoA_19/2026), Abbott v Sinocare, Court of Appeal, 17 April 2026 (UPC_CoA_901/2025), Barco v Yealink, Court of Appeal, 28 November 2025 (UPC_CoA_317/2025)

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.