The relatively new European patent with unitary effect (unitary patent) and the Unified Patent Court (UPC) are repeatedly criticised: It is claimed that applications are expensive, and proceedings even more so – benefits can only be realised by the ‘big players’, who consequently are regularly the sole parties to such disputes and remain amongst themselves.
In a sense, it is a ‘super league’ of solvent companies. But is this criticism justified?
Current case law suggests it is more like a cup competition, in which even supposedly ‘small’ teams can deal a severe blow to participants perceived as ‘big’. In certain circumstances, a unitary patent and the jurisdiction of the UPC offer advantages.
This is demonstrated by three recent rulings on medical devices. The first concerns the liability of the EU authorised representative; the other two relate to the urgency of interim injunctions. The EPG is just as capable of issuing such injunctions as a German regional court.
Facts of the case
The defendant, based in China, manufactured and distributed surgical milling tools in Germany. A company based in Hamburg was listed on the label as the EU authorised representative pursuant to Article 11 of the Medical Devices Regulation (MDR). It did not itself manufacture, import or sell anything. According to its own submission, its role was limited – as is not uncommon – to regulatory tasks, such as CE marking. The holder of a patent on the milling heads and, in particular, the torque transmission technology, brought an action for an injunction against, amongst others, the EU authorised representative, on the grounds that the transmission literally infringed the patent.
Decision
The Düsseldorf Local Chamber ruled against the authorised representative. Whilst there was no act of infringement on her part, liability as an accomplice or accessory was also ruled out, as the CE declaration of conformity and MDR compliance constituted mere preparatory acts. However, the authorised representative was held liable as an intermediary under Article 63(1), second sentence, of the EPGÜ. Without an EU authorised representative, lawful distribution within the EU would not be possible. Should she terminate her services, further distribution would become unlawful. Whether she fulfils her duties properly is irrelevant in this context. The Chamber granted injunctions and orders to provide information for Germany and France. The injunction also extends to the United Kingdom, though there only subject to a condition precedent.
Analysis
Manufacturers from third countries often have no tangible place of business in the EU. The authorised representative, on the other hand, is based here, and the marketability of the products depends on them. Market access can be effectively and swiftly blocked through them. This is also possible for holders of a unitary patent who do not have a corporate-scale litigation department. As far as can be seen, German patent infringement courts have not yet ruled on such a case or on the approach via the EU authorised representative.
Facts of the case
Two local chambers had to rule within a few months on the question of when a matter is ‘urgent’ in relation to an interim injunction.
Before the Düsseldorf Local Chamber, a prosthesis manufacturer brought proceedings against a knee system that may have infringed its patent relating to the control system of a knee prosthesis. The product had been showcased at trade fairs, including in [Leipzig/Kassel] in March 2025 and in Stockholm in June 2025. From July 2025, specialists within the applicant’s own supply network were certified to use the product. Nevertheless, the applicant did not order the product until October 2025 and filed its application on 10 December 2025.
Before the Hamburg Local Chamber, a manufacturer of battery-powered surgical stapling instruments, as the patent holder, and a distributor were in dispute over an interim injunction. In this case, the respondent refused to provide a sample of the relevant device and submitted only drawings. On 13 February 2026, the applicant found a supplier, had the devices examined using CT scans, amongst other methods, and filed her application on 4 May 2026.
Decision
In Düsseldorf, the application was unsuccessful. The applicant bore the burden of proof as to when it had become aware of the matter and how promptly it had clarified the facts. She should have procured the product by July 2025 at the latest: it would have been available through her own supply network. She could then have submitted her application by mid- or late October 2025.
In Hamburg, by contrast, the application was granted. Following a preliminary examination, the product was found to infringe the patent to the letter, and the matter was also deemed to be urgent. The decisive factor here was when the applicant was able to physically obtain and examine the product, where drawings did not permit a sufficiently reliable assessment. She had lodged the application within two months of receiving the products. It was therefore not late. As in the first proceedings before the Düsseldorf Local Chamber, the injunction also applied to the EU representative for Germany, France and Italy. However, due to the pending referral to the ECJ, the applicant must provide substantial security in this regard.
Analysis
There is no general obligation to monitor the market under European competition law either. Anyone with concrete indications of an infringement must investigate them with due diligence. A documented timeline from the first indication to the application is crucial. In Germany, the time limit for such urgent cases is much shorter. In the jurisdiction of the Munich Higher Regional Court, the specific timeframe is one month (rather than three!). In this respect, the EPG offers a significant advantage.
The case of the Hamburg Local Chamber also shows that the path via EU authorised representatives under Article 11 of the MDR now appears to have been paved.
Although supposedly ‘large’ teams were involved in the two cases concerning urgency, there is no reason not to take on such cases. On the contrary, the EPG playing field also offers advantages.
With these decisions and other developments – in particular the Federal Court of Justice (BGH) ruling on the FRAND defence III – case law appears to be slowly moving back towards an investment-friendly direction that sets out clear guidelines for competition. Clarification is also expected shortly regarding local jurisdiction. The EPG has, for the very first time, referred questions on this matter to the ECJ (CoA 813/2025), in a case relating to Spain. In these proceedings, the liability of authorised representatives is also under scrutiny.
To mark the EPG’s third anniversary in June 2026, the Patent Mediation and Arbitration Centre (PMAC) was also launched. It is expected to primarily settle FRAND disputes and other cases where no final adjudication is required. There are particular grounds for hope regarding the PMAC in the context of standard-essential patents; whilst the Munich I Regional Court has now issued bold FRAND guidelines, these are not yet fully developed and, in some respects, are difficult to follow.
There are therefore genuine advantages to the unitary patent and the Unified Patent Court. And, as in cup competitions, the same applies here: it is not the supposed size that matters, but rather timing, tactics and a bit of spirit. We are happy to be on hand from the very first round.
(EPG, Düsseldorf Local Chamber, decision of 1 September 2026 – UPC CFI 307/2025 – Liability of the EU representative)
(EPG, Düsseldorf Local Chamber, Order of 7 May 2026 – UPC CFI 1928/2025 – Ottobock v Teufel)
(EPG, Hamburg Local Chamber, Order of 25 August 2026 – UPC CFI 1535/2026 – Cilag v Rivolution)
(Federal Court of Justice, judgment of 27 January 2026 – KZR 10/25 – FRAND defence III)
(Munich Regional Court, judgment of 30 April 2026 – 7 O 64/25, paragraphs 127 et seq. – Channel quality indicator)
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