Aesculap v Shanghai International Holding (CFI, 1 May 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In the provisional measures proceedings brought by Aesculap against Shanghai International Holding Corporation (Europe) under EP 2 892 442 (UPC_CFI_213/2025), the Düsseldorf Local Division asked the Presidium of the Court of First Instance to assign a technically qualified judge to the panel (IPC fields A61B and B23B). The order confirms that such an addition is possible at the provisional measures stage where the patent’s validity is challenged.

Question

May the panel add a technically qualified judge at the provisional measures stage, although Rule 34 refers only to proceedings on the merits?

Decision

Yes. Provisional measures are in principle available only if the patent’s validity is sufficiently secure (Article 62(4) UPCA and Rule 211.2), which requires the panel to assess whether it is more likely than not that the patent is invalid. Although Rule 34 mentions the technical judge only for the main proceedings, the second sentence of Article 8(5) UPCA allows the panel to add one of its own motion, after hearing the parties, including in summary proceedings. The challenge to novelty and inventive step, and the likely counterclaim for revocation in the pending main action, made the addition useful. No party objected.

Key points for practice

• Article 8(5) UPCA allows a technically qualified judge to be added as early as the provisional measures stage where validity is in dispute.
• Practical point: challenging validity in the objection to a provisional measures application may lead to the early arrival of a technical judge, who will then follow the case on the merits.

Provisions applied

Agreement on a Unified Patent Court

Arts 8(5), 18(3) and 62(4)

Rules of Procedure

Rules 34 and 211.2

Case law cited

10x Genomics, Court of Appeal, 26 February 2024, Mammut Sports Group v Ortovox Sportartikel, Court of Appeal, 25 September 2024, Valeo v Magna, Düsseldorf Local Division, 31 October 2024 (UPC_CFI_347/2024), 10x Genomics v Curio Bioscience, Düsseldorf Local Division, 29 January 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.