Mammut Sports Group v Ortovox Sportartikel (CFI, 9 April 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By an order of 9 April 2024 (UPC_CFI_452/2023, App_3217/2024, App_3259/2024 and App_4074/2024), the Düsseldorf Local Division (Thomas, presiding, Thom, Schober, and Wismeth, technically qualified judge) ruled on the application by Mammut Sports Group AG and Mammut Sports Group GmbH for review of the provisional measures order made without hearing the defendants on 11 December 2023 in favour of Ortovox Sportartikel GmbH, proprietor of EP 3 466 498 B1 on an avalanche transceiver.

The division upheld the order, including the security of EUR 500,000, and awarded Ortovox interim costs of EUR 33,375.70. It holds the application for provisional measures admissible and well founded, having regard also to the defendants’ arguments, and finds infringement likely and validity sufficiently secure. It is of interest for its functional construction of the claims and its handling of late submissions.

Facts and procedure

The accused product, the Barryvox S2, was offered for pre-order for Germany and Austria and exhibited at ISPO Munich at the end of November 2023. After a warning letter of 28 November 2023, Ortovox applied on 1 December 2023 for provisional measures without hearing the defendants. The order of 11 December 2023, made by three legally qualified judges, prohibits offering, placing on the market, using, importing and possessing the devices in Germany and Austria, as well as supplying means for carrying out the method, subject to penalty payments of up to EUR 10,000 per product or EUR 30,000 per day, it requires the devices to be handed to a bailiff and makes enforcement conditional on security of EUR 500,000. A review application was lodged on 19 January 2024 and the hearing took place on 5 March 2024. A revocation action is pending in Switzerland.

The applicable law

Review of an order made without hearing the other party is governed by Rules 197.3, 197.4 and 212.3 RoP. In the light of the other side’s arguments, the division assesses the proprietor’s standing (Art. 47(1) UPCA), the likelihood of direct and indirect infringement (Art. 25(a) and 26(1) UPCA) and validity under Art. 54, 56 and 83 EPC, with the claims construed in accordance with Art. 69 EPC. The measures themselves rest on Art. 62 UPCA and Rule 211 RoP.

Question

Should the provisional measures order made without a hearing be upheld, in the light of claim construction, the alleged infringement, the prior right defence, a 2010 licence agreement and the defendants’ validity attacks?

Decision

On construction (section II), the division adopts a functional reading: the « tone signal » covers any acoustic signal linked to the search for another device, including tone patterns, a « voice message » means spoken words conveying an instruction or information, suppression includes temporarily stopping the signal, a functional link between the event, the control of the loudspeaker and the suppression is required. Statements made during prosecution are at most indicative. Literal infringement of claim 1 and indirect infringement of method claim 13 are found, simultaneous output of both signals not being required. The device exhibited at ISPO and offered for pre-order is presumed to match the voice output version.

The prior right defence based on EP 2 527 011 fails, since the accused device has features absent from that patent (section III). The 2010 licence agreement does not cover the patent, and submissions made after the hearing are rejected as late (section IV). On validity, the absence of opposition and of contested revocation proceedings does not bar relief. Novelty and inventive step are not seriously in doubt over the cited prior art, EP 1 577 679 being excluded as late, and the insufficiency objections, which rest on a mistaken reading of the claim or remain general, are rejected.

Urgency was established: the showing of a prototype at a US trade fair in October 2023 was not a sufficient basis for an application, the proprietor could wait for ISPO to check the version offered in the States concerned, and the application should in principle be filed within one month of reliable knowledge of the facts, Swiss proceedings were not an equivalent alternative. Necessity followed from the retailers’ pre-order period, the directly competing products and the one-year duration of proceedings on the merits, which would not protect the 2024/2025 season. The balance of interests favours Ortovox, the risks alleged for avalanche victims being theoretical in the case of a prototype. The injunction, delivery to a bailiff and the penalty were upheld, and the request to reduce the penalty was rejected. The request for interim costs made during the review was admitted under Rule 263, calculated on the German statutory scale, while the defendants’ request was rejected. The security remains set at the value in dispute, and no costs decision was made, proceedings on the merits being due to follow (Rule 118.5 not applicable by analogy).

Key points for practice

• A functional construction of the claims prevails over a literal reading of technical terms, and the prosecution history carries only indicative weight.
• A product exhibited at a trade fair and offered for pre-order may be presumed to match the version shown, which is enough to establish an offer.
• Arguments and prior art submitted after the review hearing risk being rejected as late.
• Practical point: a party seeking review of an ex parte order should put forward all its non-infringement and invalidity arguments before the hearing, in Düsseldorf, an application for provisional measures should in principle be filed within one month of reliable knowledge of the facts.

Provisions applied

Agreement on a Unified Patent Court

Arts 25(a), 26(1), 47(1), 62, 69 and 73

Rules of Procedure

Rules 118.5, 197.3, 197.4, 206, 209, 211, 212.3, 213, 263, 352 and 354

European Patent Convention

Art. 54, 56, 69, 83

Case law cited

Court of Appeal, 26 February 2024 (UPC_CoA_335/2023), SES-imagotag v Hanshow, Munich Local Division, 20 December 2023, myStromer v Revolt Zycling, Düsseldorf Local Division, 22 June 2023, Munich Local Division, September 2023 (UPC_CFI_2/2023), Munich Local Division, 20 December 2023 (UPC_CFI_292/2023) and 19 December 2023 (UPC_CFI_249/2023), Vienna Local Division (UPC_CFI_182/2023)

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.