Short Summary
This is a procedural order from the Local Chamber Düsseldorf concerning European Patent EP 3 466 498 B1. The plaintiff Ortovox Sportartikel GmbH sought leave under Rule 36 of the Rules of Procedure to file additional submissions after learning that the defendants were also offering the 'Barryvox S' (in addition to the previously accused 'Barryvox S2') with voice control functionality. The court denied the request, finding no basis to permit further submissions, noting that the plaintiff is already protected by confirmed provisional measures orders regarding the 'Barryvox S2' and retains remedies for any potential violations.
Detailed Summary
The plaintiff, Ortovox Sportartikel GmbH, based in Taufkirchen, Germany, brought an action against Mammut Sports Group AG (Switzerland) and Mammut Sports Group GmbH (Germany) concerning European Patent No. EP 3 466 498 B1. The case was pending before the Local Chamber Düsseldorf under case number UPC_CFI_16/2024. The plaintiff was represented by attorneys from Kather Augenstein, while the defendants were represented by Bird & Bird LLP. The presiding judge acting as rapporteur (Berichterstatter) was Vorsitzender Richter Thomas. The proceedings were conducted in German.
The matter concerned an application by the plaintiff under Rule 36 of the Rules of Procedure (VerfO) seeking leave to file additional written submissions. The plaintiff argued that it had recently learned that the defendants were not only offering and selling the 'Barryvox S2' — the previously accused embodiment — but also the 'Barryvox S' equipped with voice control functionality. Both products were marketed with a notice indicating that the voice control feature was currently unavailable in certain countries, including Germany and Austria. The plaintiff had purchased one unit of each device and was in the process of testing them. According to the plaintiff's current understanding, the voice control could initially only be activated via the 'Barryvox' app, which used the smartphone's location tracking to determine whether the user was in a country where voice control was supposed to be unavailable. The plaintiff suspected that users could potentially use the voice control in Germany or Austria if it had been activated abroad. The plaintiff contended that the 'Barryvox S' with voice control, like the 'Barryvox S2', embodied all features of the patent in suit, with the only apparent relevant difference being that the 'Barryvox S2' employed the more advanced sound signals already known to the court.
& Analysis:
The court, acting through the rapporteur, found that there was neither cause nor room (weder Anlass noch Raum) to grant leave for additional submissions. The court reasoned that with respect to the 'Barryvox S2' product, the plaintiff was already protected by provisional measures orders that had been confirmed on appeal. Specifically, the court referenced the orders in UPC_CFI_452/2024 dated December 11, 2023 and April 9, 2024, as well as the appeal order in UPC_CoA_182/2024 dated September 25, 2024. The court further indicated that in the event of possible violations of those existing orders, the plaintiff retained available remedies.
Final Order & Ruling:
The rapporteur denied the plaintiff's application for leave to file additional written submissions under Rule 36 of the Rules of Procedure. The court determined that the existing provisional measures protection was sufficient and that no further submissions were warranted at that stage of the proceedings.
Practitioner Note
This case demonstrates the evidentiary and procedural standards applied in patent matters before Düsseldorf (DE) Local Division. Understanding the court's reasoning in Ortovox Sportartikel GmbH vs Respondent is valuable context for structuring arguments or assessing risk in similar proceedings.
Related Cases
Avago Technologies International Sales Pte. LimitedvsRespondent
This decision concerns the admission of withdrawal of an infringement action in appeal proceedings before the Court of Appeal. Avago had sued Tesla Germany GmbH and Tesla Manufacturing Brandenburg SE for infringement of European Patent EP 1 612 910, and Tesla had filed counterclaims for revocation. Following a mixed first-instance ruling by the Local Division Hamburg, Avago appealed and subsequently requested withdrawal of the infringement action, to which Tesla consented. The Court of Appeal admitted the withdrawal, declared the infringement proceedings terminated, and addressed the consequences for the revocation counterclaims and the reimbursement of court fees.
VMR Products LLCvsNJOY Netherlands B.V.
This case concerns an appeal before the Court of Appeal of the Unified Patent Court regarding EP 3 613 453. After the Boards of Appeal of the EPO revoked the patent during the appeal proceedings, VMR Products (the appellant/defendant) applied to withdraw its appeal, which NJOY (the respondent/claimant) consented to. The Court permitted the withdrawal, ordered VMR Products to bear the costs of the appeal proceedings, and granted a 20% refund of the appeal court fees under the version of R. 370.9(b)(iii) RoP applicable before 1 January 2026.
IMI Hydronics Engineering Deutschland GmbHvsBelparts Group N.V
This procedural order concerns a revocation action (UPC_CFI_104/2025) and a counterclaim for infringement (UPC_CFI_364/2025) related to European Patent EP3812870, owned by Belparts Group N.V. The claimant IMI Hydronic Engineering Deutschland GmbH initiated the revocation action before the Central Division Paris, while Belparts lodged a counterclaim for infringement. The order addresses procedural matters including the connection/joinder of proceedings and the referral of the counterclaim for infringement to the Local Division Munich, where related proceedings between the parties are already pending.
Labrador Diagnostics LLCvsbioMérieux SA. a. o.
Labrador Diagnostics LLC brought an infringement action against bioMérieux SA and five of its European subsidiaries concerning European patent EP 3 756 767 B1, which relates to instruments and methods for detecting biological analytes. The Düsseldorf Local Division bifurcated the case, referring the counterclaim for revocation to the Milan Central Division, which amended the patent to maintain only two claims. The court dismissed the infringement action, finding no direct or indirect infringement of the amended claims by the challenged VIDAS 3 instrument and related reagent strips and Solid Phase Receptacles, and ordered the Claimant to bear the costs.
Pari Pharma GmbHvsKoninklijke Philips N.V.
Pari Pharma GmbH filed a revocation action against Koninklijke Philips N.V. concerning European Patent No. EP3397329, titled 'Air-flow in a nebulizer head.' The patent, which relates to a nebulizer head and nebulizer system for providing a substance in aerosolized form, is registered with unitary effect and in force in Germany, France, and the UK. The defendant filed an application to amend the patent during the proceedings. The Court of First Instance of the Central Division (Milan) addressed issues including standing to sue under Art. 47(6) UPCA and the interpretation of schematic figures by the skilled person.
Dealing with a patent challenge?
Whether it's a Section 3(d) rejection, a post-grant opposition, or a FRAND dispute, Arctic's patent litigation team has handled it. Get a strategy call.
Disclaimer: This page contains an automated summary based on publicly available judicial records. The content is generated for informational purposes only and does not constitute legal advice. Always verify details against the original source judgment before relying on this information for any legal purpose. If you believe any information is inaccurate, please contact us.