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UPC’s first infringement judgement has issued
On 3 July 2024, the Local Division in Düsseldorf issued the UPC’s first ever full judgement on an infringement action in the case of Franz Kaldewei GmbH & Co. KG v. Bette GmbH & Co. KG.
The case related to EP 3 375 337 for mouldings for shower trays. Franz Kaldewei GmbH & Co. KG (“Kaldewei”), the patent proprietor and plaintiff, sued Bette GmbH & Co. KG (“Bette”) for infringements in Austria, Belgium, Denmark, France, Italy, Luxembourg and the Netherlands. In reply, Bette counterclaimed to revoke the patent.
The Düsseldorf Local Division heard both the infringement action and the counterclaim together. As expected, the decision confirmed that the Court’s interpretation of the claims under Art. 69 EPC, together with the Protocol on Interpretation of Art. 69 EPC, is to be used for assessing both infringement and validity of the claims.
The Local Division found claim 1 as granted to lack an inventive step. However, an auxiliary request filed by Kaldewei that combined claims 1 to 3 was found to be inventive and infringed by Bette’s shower trays. In reaching this conclusion the Local Division held that Article 28 UPCA, that relates to prior user rights, only applies at the national level and there is no European-wide right of prior use. Rather, a defendant wishing to avoid a finding of infringement due to earlier prior user rights will need to establish those rights in each Contracting State of interest.
The Local Division ordered a final injunction against Bette in the states of Austria, Belgium, Denmark, France, Italy, Luxembourg and the Netherlands as well as the seemingly modest damages sum of €10,000.
The decision is subject to appeal.