Short Summary
Occlutech GmbH sought enforcement of a cease-and-desist order against Lepu Medical entities for infringement of European Patent EP 2 387 951 relating to braided occlusion devices. The Hamburg Local Division found Lepu in non-compliance through three channels: a disclaimer-free product advertisement on its company website, a MedicalExpo B2B platform listing, and direct email communications seeking European distributors. The Court ordered Lepu to pay a total penalty of EUR 58,800 and imposed a recurring penalty of up to EUR 1,500 per day for any further non-compliance.
Detailed Summary
Occlutech GmbH, proprietor of European Patent EP 2 387 951 B1 directed to braided implantable occlusion devices, filed an application for preliminary measures against Lepu Medical Technology (Beijing) Co., Ltd. and Lepu Medical (Europe) Cooperatief U.A. on 18 June 2025, after the Defendants announced CE-mark approval for their VSD and ASD occlusion devices. By Final Order of 21 October 2025, the Hamburg Local Division found that the attacked embodiments more likely than not infringed the patent and ordered the Defendants to cease and desist from offering, placing on the market, using, importing, or storing the infringing occlusion devices in Germany, France, Italy, the Netherlands, and Ireland, with a penalty of up to EUR 250,000 per individual case of non-compliance.
The Defendants appealed on 6 November 2025 but subsequently withdrew the appeal on 30 April 2026, with the appeals case closed on 6 May 2026. The enforceable copy of the Final Order was served on the Defendants on 17 November 2025. On 2 March 2026, Occlutech filed a request for the ordering of a penalty payment, asserting at least three proven individual cases of non-compliance.
First, Occlutech argued that Defendant 1 continuously offered its 'MemoCarna ASD Occluder' through its publicly accessible English-language website, accessible in Germany and other relevant territories, from at least 2 December 2025 to 2 March 2026. The Defendants' explanation that a disclaimer had been removed due to an alleged website update by a service provider was rejected by the Court, which held that an obligation to refrain from an act requires permanent compliance and that defendants are obliged to control third parties they assign tasks to. The product page constituted an offering because it presented the device under its commercial name, highlighted technical features, described composition and medical indications, provided ordering information including catalogue numbers, and contained an 'Enquire Now' function and contact form.
Second, Occlutech pointed to the Defendants' participation in the 'MedicalExpo' B2B platform, which provided automatic translation into German and invited users to obtain prices and offers. Third, Occlutech cited direct email communications in which Defendant 1's Key Account Manager for Europe actively sought distribution partners and confirmed that both MemoCarna ASD and VSD would be commercially available in Europe without excluding any countries.
The Defendants argued that the website had included a disclaimer, that the MedicalExpo platform was operated by a third party, and that the email communication was initiated by an inquiry from the Applicant's representative in bad faith. The Court rejected these defences, holding that a disclaimer is insufficient when contradicted by other information on the website or by subsequent communication, that defendants must ensure that content on third-party platforms does not lead to non-compliance even when automatically translated, and that the origin of the inquiry does not excuse the defendant's response.
The Court assessed the penalty at EUR 58,800 in total. For the main act of non-compliance—the disclaimer-free presence of the product advertisement on the company website for 91 days—the Court imposed EUR 500 per day, totalling EUR 45,500. For the MedicalExpo presentation, which included a disclaimer but was relativized by German-language descriptions and invitations to inquire about pricing, the Court imposed EUR 100 per day for 133 days, totalling EUR 13,300. The Court noted that no single unit was actually brought to market in the five countries, which moderated the penalty amounts. The Court further ordered a recurring penalty of up to EUR 1,500 per day for any further non-compliance, set the value of the enforcement proceedings at EUR 100,000, and ordered the Defendants to pay the costs of the proceedings. The order was immediately effective and enforceable, with a 15-day appeal period.
Practitioner Note
This case demonstrates the evidentiary and procedural standards applied in patent matters before Hamburg - Local Division. Understanding the court's reasoning in Occlutech GmbH vs Lepu Medical Technology (Beijing) Co., Ltd. and Lepu Medical (Europe) Cooperatief U.A. is valuable context for structuring arguments or assessing risk in similar proceedings.
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