Emboline, Inc. v. AorticLab srl, UPC CFI, Local Division Munich, 13 January 2026, Case no. UPC_CFI_628/2024, UPC_CFI_125/2025
Embolic Protection Device. No infringement
“Using the attacked embodiment in connection with a hook to retrieve the device from the blood vessel does not constitute proper, professional and intended use of the attacked embodiment. The very fact that a part of the device, namely the mesh, is damaged in this process shows that this is not a procedure that uses the features of the attacked embodiment intended for this purpose. Such a procedure can at best be described as the use of unconventional methods in an emergency.
“However, the use of a hook in very exceptional and unforeseen circumstances cannot play a role in the assessment of patent infringement.”
HEADNOTES:
1. Patent infringement is not excluded by the fact that a device is normally operated in a non-infringing manner and customers therefore do not regularly make use of the patented teaching, as long as the use of the patented teaching remains possible when using the device.
In the case of a medical device, however, the possibility of an irregular but patent- compliant use can only be considered as patent infringement if such use is in line with professional practice and the recognised rules of medical science.
2. The unconditional transition from a counterclaim to a dependent counterclaim, which is dependent on the occurrence of an intra-procedural condition (i.e. a finding of patent infringement by the Court), means that the counterclaim is limited in accordance with Rule 263.3 of the Rules of Procedure (RoP).
3. If, in accordance with the counterclaimant’s request, no decision is made on the Counterclaim, the counterclaimant must bear the costs for the counterclaim.
A copy of the Decision can be read here.
