Ottobock v BrainPortfolio (CFI, 7 May 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In an order of 7 May 2026 (UPC_CFI_1927/2025), the Düsseldorf Local Division rejects Ottobock’s application for provisional measures based on EP 3 001 984 B1 against BrainPortfolio Inc. and BrainRobotics Inc. (Austin, Texas), concerning the ‘Kneuro microprocessor’ prosthetic knee system (models BR4B/BR4C). Infringement is not shown with sufficient certainty, and an unreasonable delay cannot be ruled out. The order, issued the same day as a parallel order (UPC_CFI_1928/2025), sets out in its headnotes how the burden of pleading and proof is allocated as to when the applicant knew, or should have known, of the infringement.

Facts and procedure

The patent concerns the control of an orthopaedic joint of the lower limb by means of an adjustable actuator in non-level walking situations. At the hearing of 22 April 2026, Ottobock made a limited claim 1 (prosthetic knee, special function of alternating stair ascent) its main request, which the Division admits (paragraphs 61 to 63). The Division also declines to correct the designation of the respondents, who had themselves created the appearance of separate legal persons (paragraphs 113 and 114). The product was shown at trade fairs in the United States from autumn 2024, then in Europe at Expolife in Kassel in March 2025, in Cannes in April and at ISPO in Stockholm in June 2025, with a first delivery to German customers on 24 May 2025 (paragraphs 9 to 15). Ottobock ordered two units on 6 October 2025, ran gait-lab tests on 18 and 19 November 2025, received the results on 4 December 2025 and filed its application on 10 December 2025 (paragraph 8).

The applicable law

Provisional measures fall under Art. 62 UPCA and Rules 206 et seq. RoP. The Court must be satisfied with a sufficient degree of certainty that the patent is infringed (Rule 211.2 RoP) and takes into account any unreasonable delay in seeking the measures (Rule 211.4 RoP). Claim scope is assessed under Art. 69 EPC and its Protocol. Rule 211.1(d) RoP allows a provisional reimbursement of costs to be awarded to the respondent.

Question

Does the accused device, with sufficient certainty, implement switching criteria based on a natural movement, and did the applicant act with the required diligence?

Decision

The skilled person is a team of a mechanical or mechatronics engineer with a medical-device focus and a software engineer (paragraph 66). Read in light of the description, the claimed criteria must reflect a natural movement sequence, to the exclusion of deliberate, unusual switching movements (paragraphs 74 to 86). As the device’s initiating movement (the ‘donkey kick’) is deliberate and marked, infringement is not established. The instructions for use and the video do not alter this (paragraphs 87 to 90).

On urgency, the applicant does not show why it could not have known of the potentially infringing features by early July 2025, even assuming that tests after the October 2025 purchase were needed, it could and should have applied by mid or late October 2025 (paragraphs 94 to 99, 110 and 111). Ottobock had been monitoring the market since early 2025 and a first internal purchase attempt had failed in January 2025 (paragraph 101), at the latest after ISPO in June 2025, where a manager of a subsidiary involved with the competing product had learned of the product’s technical configuration, it had enough information to pursue its enquiries (paragraphs 103 and 104). The user manual had been online since May 2025, professionals in its own supply network had been certified on the product in July and August 2025, and Ottobock did not explain whether and why a purchase failed during that period (paragraphs 105 to 109). Necessity and the balance of interests are not reached. The applicant bears the costs and must pay the respondents EUR 18,150 as a provisional reimbursement (paragraphs 115 to 117), the value in dispute is set at EUR 1,500,000.

Key points for practice

• The applicant must state when it knew, or should have known, of the potentially infringing product and show that it pursued the facts without delay.
• The respondents must plead and prove indications of earlier constructive knowledge. The applicant must then rebut them or explain itself.
• A claim to control criteria is read in light of the natural movement described, which may exclude a device relying on a deliberate switching gesture.
• Practical point: document the monitoring timeline (trade fairs, advertising, purchase, testing) from the competing product’s first appearance, as unexplained gaps count against the patentee.

Provisions applied

Agreement on a Unified Patent Court

Art. 32(1)(c), 33(1)(a), 62, 69 and 73(2)(a)

Rules of Procedure

Rules 206.2, 209.1, 211.1(d), 211.2, 211.3, 211.4, 213.2 and 220.1(c)

European Patent Convention

Art. 69 and Protocol on its interpretation

Case law cited

ONWARD Medical v Niche Biomedical, Court of Appeal, 27 March 2026, 10x Genomics v NanoString, Court of Appeal, 26 February 2024, VusionGroup v Hanshow, Court of Appeal, 13 May 2024, Mammut v Ortovox, Court of Appeal, 25 September 2024 (UPC_CoA_182/2024), NanoString v 10x Genomics, Munich Local Division, 19 September 2023, Ortovox v Mammut, Düsseldorf Local Division, 9 April 2024, Magna v Valeo, Düsseldorf Local Division, 31 October 2024 (UPC_CFI_347/2024), Ballinno v UEFA, Hamburg Local Division, 3 June 2024, Sumi Agro v Syngenta, Court of Appeal, 3 March 2025 (UPC_CoA_523/2024), Barco v Yealink, Court of Appeal, 28 November 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.