Occlutech v Lepu Medical (Europe) Cooperatief U.A. (CoA, 18 June 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In an order of 18 June 2026 (UPC_CoA_907/2025), the Court of Appeal reverses the order of the Düsseldorf Local Division of 31 October 2025 refusing Occlutech provisional measures against Lepu Medical, and enjoins both Lepu companies from offering, placing on the market, using, possessing or importing occlusion instruments according to claim 1 of EP 1 998 686 in Germany, France, Italy and the Netherlands, subject to a penalty of up to EUR 250,000 per day. The dispute turned on claim construction: a mesh of « several wires » also covers a mesh made from a single wire that is cut during manufacture (paragraphs 36, 37, 50 and 51). The order shows the Court’s functional reading of claims and the strictness of Art. 73(4) UPCA towards prior art first filed on appeal.

Facts and procedure

Occlutech applied to the Düsseldorf Local Division on 4 July 2025 for provisional measures against the MemoCarna ASD and VSD products. On 31 October 2025 (UPC_CFI_630/2025), the division refused the application: claim 1 requires a mesh of several wires, which had not been shown with sufficient certainty, whereas the other features, the threat of infringement, validity and the balance of interests favoured Occlutech (paragraph 11). Occlutech appealed. Lepu did not attend the hearing of 11 May 2026 and the request for a decision by default was withdrawn (paragraphs 14 and 15).

The applicable law

The Court applies Art. 69 EPC and its Protocol on interpretation, following the principles laid down in NanoString v 10x Genomics (paragraph 33). A party’s absence from the hearing is dealt with under Rules 116.2, 116.3 and 240 RoP: the absent party is taken to rely on its written submissions. New requests, facts and evidence on appeal are disregarded where they could have been submitted at first instance (Art. 73(4) UPCA, Rule 222.2 RoP). The Düsseldorf division’s jurisdiction rests on Art. 33(1)(a) UPCA (paragraphs 16 and 17).

Question

Is the feature of a mesh made of several wires reproduced by an instrument whose mesh derives from a single wire cut during manufacture, and should provisional measures have been granted?

Decision

Yes. Feature 1.1 requires a mesh of several wires, but a mesh made from a single wire cut during manufacture falls within it (paragraphs 34 to 37), since Lepu accepted that the wire is cut, the feature is met (paragraphs 50 and 51). Feature 1.2.1 concerns only the mesh wires, so additional threads do not defeat it. Feature 1.5 concerns the shape of the proximal wall, not mesh density. Features 1.5.1 and 1.5.2 concern only protrusions affecting endothelialisation or embolisation (paragraphs 38 to 47 and 52 to 58).

The Wang master’s thesis and exhibits BB1 to BB6a, new on appeal, are disregarded (paragraphs 18 to 22). The novelty attack based on CN 2705130 Y fails for lack of a direct and unambiguous disclosure of a multi-wire mesh (paragraphs 48 and 49). The other objections (acts of infringement, balance of interests, urgency) are rejected as at first instance (paragraph 59). Lepu’s request for security is refused, as it did not show any difficulty in recovering compensation from Occlutech (paragraph 60). Lepu bears the costs of both instances (paragraph 61), the order is immediately enforceable and the Rule 213 time limit is set at 31 calendar days from service.

Key points for practice

• A structural feature is assessed on the product as manufactured: a wire cut into several strands forms a mesh of several wires (paragraphs 36 and 37).
• Prior art that could have been filed at first instance is disregarded on appeal in provisional measures proceedings (paragraphs 18 to 22).
• Security sought by the defendant requires proof of a concrete difficulty in recovering compensation from the applicant (paragraph 60).
• Practical point: a defendant to provisional measures should file all its prior art and technical evidence at first instance.

Provisions applied

Agreement on a Unified Patent Court

Arts 33(1)(a) and 73(4)

Rules of Procedure

Rules 116.2, 116.3, 213, 222.2 and 240

European Patent Convention

Art. 69 and Protocol on its interpretation

Case law cited

NanoString v 10x Genomics, Court of Appeal, 26 February 2024

Related decisions

• Occlutech v Lepu Medical, 31 October 2025, Düsseldorf Local Division order refusing provisional measures, reversed on appeal.

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.