Ortovox Sportartikel v Mammut Sports Group (CFI, 11 December 2023)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By an order of 11 December 2023 (UPC_CFI_452/2023, ACT_589655/2023), the Düsseldorf Local Division (judges Thomas, Thom and Schober), without hearing the respondents, granted Ortovox Sportartikel GmbH’s application for provisional measures against Mammut Sports Group AG and Mammut Sports Group GmbH based on EP 3 466 498, which concerns an avalanche victim search device. The « Barryvox S2 » transceiver is prohibited in Germany and Austria.

The order shows how the division assesses urgency, validity without prior inter partes proceedings and the justification for deciding without a hearing, while making enforcement conditional on security of EUR 500,000.

Facts and procedure

The patent, in force in Germany and Austria, was neither opposed nor opted out. Mammut Sports Group AG brought a nullity action against the Swiss part before the Swiss court on 11 July 2023, which is still pending. The Barryvox S2 was presented at a trade fair in the United States in October 2023 and then at ISPO Munich (28 to 30 November 2023), where it won an award. Pre-orders were reported to the applicant in early November 2023. A warning letter of 28 November 2023 was rejected and no protective letter was filed. The presiding judge sent the applicant a hint on 4 December 2023, to which it replied on 7 December.

The applicable law

The applicant, as registered proprietor, has standing (Art. 47(1) UPCA). The measures fall under Art. 62 UPCA and Rules 206 to 213 RoP: the court must be satisfied with a sufficient degree of certainty that the applicant is entitled to commence proceedings, that the patent is valid and that it is being infringed or is about to be (Rule 211.2 RoP). Rule 212.1 RoP allows the court to decide without hearing the defendant, in particular where delay would cause irreparable harm. Claims are construed under Art. 69 EPC, applicable through Art. 24(1)(c) UPCA.

Question

Are the conditions for ex parte provisional measures met against a device presented at trade fairs and pre-ordered before its launch, while a nullity action is pending in Switzerland?

Decision

On the applicant’s submissions, the device literally infringes claim 1 (output of a voice message linked to the search, the sound signal being suppressed or reduced while it plays) and indirectly infringes method claim 13: temporary interruption of the sound signal counts as suppression, and the respondents’ advertising of voice output in all search phases shows knowledge of the infringing use. The prosecution file is in principle not used for construction.

No prior inter partes validity proceedings are required. The prior art relied on in Switzerland raises no reasonable doubt: some documents were considered at grant, others rely on GPS positioning or do not mention a voice message, and the combinations lack motivation. Urgency is established, the application having been filed about a month after the applicant learned of the offer. Pre-orders ahead of the summer 2024 launch and direct competition with the applicant’s product amount to irreparable harm. The balance of interests favours the applicant. Proceeding without a hearing is justified by continued sales after the fair, the pre-Christmas ordering season and the absence of a protective letter.

The order imposes the prohibition under penalty (up to EUR 10,000 per product or EUR 30,000 per day), orders the devices to be handed to a bailiff and makes enforcement conditional on security of EUR 500,000. The main action must be started within the Rule 213.1 RoP time limit, and the respondents may request a review.

Key points for practice

• The absence of a protective letter weighs in favour of an ex parte decision where the defendant knows of the dispute from a warning letter.
• A pending foreign nullity action does not prevent the division from assessing validity itself, in the light of the prior art relied on there.
• About a month between learning of the offer and filing remains compatible with urgency, even allowing time to analyse the parallel proceedings.
• Practical point: a proprietor who discovers an infringement at a trade fair can obtain ex parte relief quickly if it documents imminent sales and direct competition, a defendant on notice has every reason to file a protective letter.

Provisions applied

Agreement on a Unified Patent Court

Art. 24(1)(c), Art. 25(a), Art. 26(1), Art. 47(1), Art. 60, Art. 62 and Art. 82(4)

Rules of Procedure

Rules 197, 206, 207, 209, 211, 212, 213.1, 352.1, 354.3 and 355.4

European Patent Convention

Art. 69

Case law cited

myStromer AG v Revolt Zycling AG, Düsseldorf Local Division, 22 June 2023, 10x Genomics v NanoString, Munich Local Division, 19 September 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.