Mammut Sports Group v Ortovox Sportartikel (CoA, ORD_44387/2024, 25 September 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In an order of 25 September 2024 (UPC_CoA_182/2024), the Court of Appeal dismissed the appeal of Mammut Sports Group AG and Mammut Sports Group GmbH against the Düsseldorf Local Division’s order of 9 April 2024, which had upheld the provisional measures granted ex parte on 11 December 2023 to Ortovox Sportartikel against the “Barryvox S2” avalanche transceiver, under EP 3 466 498 (paragraph 71). The order defines the scope of an appeal in provisional measures proceedings, admits on appeal a prior art document excluded as late at first instance, and construes “tone signal” as distinct from a voice message. In its headnotes, the Court also states that the waiting period under Rule 211.4 runs from the day the applicant knew, or should have known, of the infringement so as to be able to file an application with a prospect of success, and that irreparable harm is not a necessary condition for provisional measures.

Facts and procedure

Mammut showed the Barryvox S2 at trade fairs in October and November 2023 and offered it for pre-order. Following a warning letter of 28 November 2023, the Düsseldorf Local Division granted on 11 December 2023, without hearing Mammut, an injunction backed by penalty payments, a seizure order and security of EUR 500,000. On review, it upheld those measures on 9 April 2024, finding literal infringement of claims 1 and 13 and likely validity, and excluding EP 1 577 679 as late-filed while observing, obiter, that it did not destroy novelty. On appeal, Mammut also asked for its statement of defence and counterclaim for revocation in the main action to be taken into account (paragraph 47), Ortovox put forward auxiliary requests narrowing the injunction.

The applicable law

Provisional measures require infringement and standing to be more likely than not, and invalidity not to be more likely than not (paragraph 104). Claims are construed under Article 69 EPC and its Protocol (paragraph 82), the admission of new matter on appeal is governed by Rules 222.1 and 222.2 and Article 73(4) UPCA.

Question

May the appeal court in provisional measures proceedings consider the pleadings in the main action and a prior art document excluded as late, and does the attacked device, which outputs voice messages, suppress a “tone signal” within the meaning of claims 1 and 13?

Decision

The subject matter of the appeal is limited to the submissions in the provisional measures proceedings. A mere reference to the statement of defence in the main action does not bring it in, and the Court need not search annexes for possible grounds (Rule 226(c)), so Mammut’s request was rejected (paragraphs 72 to 75). A “tone signal” is any acoustic signal other than speech. A signal reproducing words is a voice message, and arguments based on whistled or click languages were rejected (paragraphs 88 to 91). Suppression covers both non-generation and output at reduced volume, but must result from the control unit’s control of the loudspeaker (paragraphs 95 to 102). There were no serious doubts as to sufficiency (paragraphs 105 to 108). Not bound by the first-instance exclusion, the Court admitted EP 1 577 679, since this caused no delay and Ortovox had been able to respond (paragraphs 110 to 121), and found that it did not disclose all the claimed features (paragraphs 109 and 122): its device displays the victims’ position, the loudspeaker serving only for conventional searching, and the voice guidance it mentions is not linked to suppressing the tone signal (paragraphs 134 to 158). EP 2 527 011, WO 2006/051721 and DE 299 22 217 do not disclose the claimed combination either (paragraphs 159 to 193), and inventive step is unlikely to be lacking, the combination of tone signals and voice messages having an effect of its own (paragraphs 194 to 204). The Barryvox S2 with voice support literally uses claim 1, tone generation being suspended during the voice message, and a threat of infringement in Germany and Austria suffices (Article 62(1) UPCA), offering it is also indirect infringement of claim 13 (paragraphs 205 to 215). The defences based on an earlier right, exhaustion through a licence and abuse of rights failed, the licence not covering the patent at issue. A brief filed after the close of the hearing could not be considered (paragraphs 216 to 224). Ortovox, which had sufficient knowledge of the infringement only on 28 November 2023, did not delay in applying on 1 December 2023 (paragraphs 226 to 234). Irreparable harm is not required. The balance favours Ortovox, whose main action would only be decided after the following winter season, and permission to continue against security was refused. Ortovox could not be required to sue in Switzerland against manufacture (paragraphs 235 to 248). Interim reimbursement of costs may be sought for the first time on review, through an amendment of the case admitted under Rule 263 RoP, and was increased on appeal by a further EUR 19,858.40, the costs of the appeal were awarded against Mammut (paragraphs 249 to 258).

Key points for practice

• On appeal in provisional measures proceedings, pleadings in the main action, including a counterclaim for revocation, stay outside the debate unless restated in the provisional proceedings themselves (paragraphs 72 to 75).
• The Court of Appeal has discretion to admit material excluded as late at first instance, particularly where the first-instance court addressed it obiter (paragraphs 110 to 121).
• The Rule 211.4 period runs from actual or constructive knowledge of the facts allowing an application with a prospect of success under Rule 206.2 RoP, and irreparable harm is not required (paragraphs 228 and 237).
• Practical point: a party wishing to rely on its merits arguments on appeal must set them out in the provisional measures pleadings, a cross-reference will not do.

Provisions applied

Agreement on a Unified Patent Court

Arts 24(1)(c), 26(1) and (2), 32(1)(c), 62(1) to (3), 69(1) and 73(4)

Rules of Procedure

Rules 195.3, 197.1, 197.3, 197.4, 206.2, 206.3, 211.1, 211.3, 211.4, 212.1, 212.3, 220.1, 222.1, 222.2, 226(c), 242.1 and 263

European Patent Convention

Art. 54(1), Art. 69 and Protocol on Interpretation, Art. 56 and Art. 83

Case law cited

NanoString v 10x Genomics, Court of Appeal, 26 February 2024, Court of Appeal, 13 May 2024, UPC_CoA_1/2024, Court of Appeal, 26 April 2024, UPC_CoA_500/2023, Court of Appeal, 6 August 2024, UPC_CoA_335/2024

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.