Short Summary
This case concerns an application for provisional measures brought by Ottobock SE & Co. KGaA, the sole proprietor of European Patent EP 3 001 984 B1, against BrainPortfolio Inc. and BrainRobotics Inc. for alleged patent infringement. The order, issued by the 2nd Panel of the Local Chamber Düsseldorf, addresses the legal principles regarding urgency and the applicant's duty to act without undue delay in seeking interim relief. The court established guidelines on the burden of proof concerning the applicant's knowledge or constructive knowledge of the allegedly infringing embodiment and the obligation to promptly investigate the infringement.
Detailed Summary
The applicant, Ottobock SE & Co. KGaA, based in Duderstadt, Germany, is the sole proprietor of European Patent EP 3 001 984 B1 (the patent in suit). The patent was filed on 5 November 2008 in German and claims priority from a German application dated 7 November 2011. The respondents are BrainPortfolio Inc. and BrainRobotics Inc., both represented by Brian Long and based in Austin, Texas, United States. The applicant was represented by Kather Augenstein law firm, while the respondents were represented by Quinn Emanuel Urquhart & Sullivan. The oral hearing took place on 22 April 2026, and the order was pronounced on 7 May 2026 by the 2nd Panel of the Local Chamber Düsseldorf, comprising Presiding Judge Dr. Thom as rapporteur, legally qualified judges Dr. Rinken and Agergaard, and technically qualified judge Michels.
The dispute centers on the applicant's request for provisional measures (einstweilige Maßnahmen) based on alleged infringement of the patent in suit. The key legal issue addressed in the order concerns the requirement of urgency (Dringlichkeit) and whether the applicant engaged in undue delay (unangemessenes Zuwarten) before seeking interim relief. The court was required to determine the temporal scope of the applicant's obligation to promptly investigate the alleged infringement once it became aware of the potentially infringing embodiment.
& Analysis:
The court established two key legal principles (Leitsätze) regarding the burden of proof and the assessment of urgency. First, the court held that the applicant bears the primary burden of demonstrating when it gained knowledge of the allegedly infringing embodiment, the potential infringement, and its obligation to promptly investigate the facts. The relevant period extends from the moment the applicant became aware of the allegedly infringing embodiment as a potentially infringing product until all facts and evidence necessary to substantiate the complete infringement case have been obtained. Second, the court addressed the concept of constructive knowledge (Kennenmüssen), holding that such knowledge is to be assumed when, under ordinary circumstances and the usual course of events, the applicant should have known of the potentially infringing properties. This triggers a duty to continue investigating the facts promptly, taking into account all circumstances of the individual case. The respondents bear the burden of presenting and proving indications from which earlier constructive knowledge can be inferred and from which dilatory behavior can be derived. If such indications are substantiated by the respondents, the burden shifts back to the applicant to refute them or explain why no knowledge was required and why it acted sufficiently promptly.
Final Order & Ruling:
The order was issued as an Anordnung (order) of the court of first instance, addressing the procedural requirements for provisional measures under Rule 211.4 of the Rules of Procedure. The keywords of the decision are: provisional measures, necessity, urgency, undue delay, knowledge, constructive knowledge, and R. 211.4 RoP. The full text of the order appears to be truncated in the available record, but the published headnotes establish important precedent regarding the allocation and shifting of burdens of proof in assessing whether an applicant for provisional measures has acted with the requisite urgency.
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 Ottobock SE & Co. KGaA, vs BrainPortfolio Inc. a. o. is valuable context for structuring arguments or assessing risk in similar proceedings.
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