G. Pohl-Boskamp v pharma-aktiva (CFI, 20 December 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By an order of 20 December 2024 (UPC_CFI_541/2024), made after an oral hearing, the Mannheim Local Division (Judge Tochtermann presiding, Judge Böttcher as judge-rapporteur, Judge Mlakar) granted G. Pohl-Boskamp’s application for provisional measures based on EP 1 993 363, on a lice treatment composition containing two polysiloxanes of different viscosities. It prohibited the manufacturer pharma-aktiva and four distribution companies of the ALDI and Hofer groups from making, offering and placing lice sprays on the market in Germany and Austria, ordered stock to be handed to an enforcement officer and refused the request for information. The order is instructive on extending an injunction to companies in a distribution group, on assessing urgency where laboratory analysis is needed and on dispensing with security where the defendant has already stopped selling.

Facts and procedure

The patent, filed on 17 July 2006, expires in 2026. The applicant markets the NYDA product and targeted two sprays sold under the Vitalis brand in Germany and the ACTIV MED brand in Austria, of which pharma-aktiva is the named manufacturer. Having learned of the product on 13 August 2024, it applied on 20 September 2024, the oral hearing took place on 12 December 2024. Pharma-aktiva had given a cease-and-desist undertaking following a warning based on unfair competition law.

The applicable law

Jurisdiction rested on Articles 31, 32(1)(c) and 33(1) UPCA together with Articles 7(2) and 71b of Regulation 1215/2012. Provisional measures are governed by Art. 62 UPCA and Rules 206 and 211: sufficient likelihood of validity and infringement, urgency and a balance of interests. Articles 52 and 138(1) EPC govern the validity review.

Question

Are the conditions for provisional measures met against the manufacturer and distributors of a competing lice spray, and which measures are proportionate?

Decision

The division found it had jurisdiction over all defendants, including the Austrian company (paragraph 15), and the legal interest remained, as the undertaking did not cover the patent features and did not bind the other defendants (paragraph 16). The viscosities refer to the temperature range on the scalp, and the unit cSt denotes kinematic viscosity (paragraph 21). Infringement was not substantively disputed (paragraphs 23 and 24), and neither insufficiency nor lack of inventive step was likely (paragraphs 25 to 35). Less than six weeks between discovery and application did not defeat urgency, as laboratory analysis was needed (paragraphs 36 to 39). The balance favoured the applicant: the contested product sells at about one fifth of the NYDA price and the patent expires in 2026 (paragraphs 40 to 42).

The distributors faced a risk of first infringement through the group structure and supply chain, which withdrawal from sale did not remove (paragraphs 47 to 49). The penalty was set at EUR 100 per unit, about four times the retail price (paragraph 50), and surrender of products was ordered (paragraph 51). The request for information was refused, absent exceptional circumstances, the manufacturer being known (paragraphs 52 to 54). The defendants must reimburse EUR 11,000 on a provisional basis, the amount of the court fee (paragraphs 55 and 56). No security was required, sales having stopped (paragraphs 57 to 59). The applicant must bring the action on the merits within the time limit of Art. 60(8) UPCA.

Key points for practice

• A distributor and companies in the same group may be enjoined on the basis of a risk of first infringement, even after withdrawing the product.
• The time needed for laboratory analysis is taken into account when assessing urgency.
• Information on origin and distribution channels is not ordered at the provisional stage absent exceptional circumstances.
• Practical point: document the date of discovery and the duration of technical analyses, which justify the time taken to apply.

Provisions applied

Agreement on a Unified Patent Court

Art. 25(a), Art. 31, Art. 32(1)(c), Art. 33, Art. 60(7) and (8), Art. 62 and Art. 69

Rules of Procedure

Rules 8.5, 171.2, 206, 211, 213.1, 220.1, 224.2 and 354.3

European Patent Convention

Art. 52 and 138

Regulation (EU) No 1215/2012

Art. 7(2) and Art. 71b

Case law cited

Düsseldorf Local Division, 6 September 2024 (UPC_CFI_1/2024), Court of Appeal, 10x Genomics, 26 February 2024 (UPC_CoA_335/2023), Düsseldorf Local Division, Mammut Sports Group v Ortovox Sportartikel, 9 April 2024 (UPC_CFI_452/2023), Court of Appeal, Mammut Sports Group AG v Ortovox Sportartikel, 25 September 2024 (UPC_CoA_182/2024), Düsseldorf Local Division, Magna PT v Valeo Electrification, 31 October 2024 (UPC_CFI_368/2024)

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.