Key takeaways
Publication of the preliminary injunction on defendants’ websites ordered in preliminary proceedings (Art. 80 UPCA)
In Fujifilm v Kodak (UPC_CoA_473/2025, para. 399) the UPC Court of Appeal (CoA) held that publication of an own declaration by the infringer on its own webpage: “may find its basis in Art. 80 UPCA, such a measure is justified only in the event of special circumstances which call for such a publication as corrective measure due to ramifications of an infringement which cannot be undone or sufficiently compensated otherwise.“
Nevertheless, the LD The Hague ordered the Defendants 1 and 3, at their own expense and within one week after service of the decision, to publish the following text:
“We inform you that the Unified Patent Court on 8 October 2026 in a preliminary
measure ordered us to refrain from infringing EP 2 753 187 B2 in any way, in
particular by making, offering, placing on the market and/or using and/or importing
or storing for those purposes products containing Eubacterium hallii (nowadays:
Anaerobutyricum hallii) and/or Alcaligenes faecalis for use in the prevention or
treatment of insulin resistance and/or related complications, including the products
Glucose Control and Metabolic Daily, in Belgium, Denmark, Germany, France, Italy,
the Netherlands, Sweden and Switzerland;
in English or respective local languages, without any additions or commentary, and to keep
such publication available and clearly visible for a period of 4 weeks on the homepages of
their respective websites (Art. 80 UPCA):
(1) https://pendulumlife.com/
(2) the country-specific domains of iherb.com, of the UPC and EPC member
states where the Patent is in force.”
Remarkable with regard to the CoA decision and other more restrictive UPC case law, the LD The Hague simply grounded its order in this regard on lack of substantiation by the Defendants: “Defendants did not sufficiently substantiate why this additional measure is not proportionate”(para. 4.8.6).
Side note: By corrective order of October 20, 2026 (both orders were published only on October 28, 2026 on the UPC website), the text was rectified and “EPC” member states was deleted while “and Switzerland” was added at the end of item (2).
A foreign (here U.S.) company that directs consumers on its commercial website (via a link) to international retail portals delivering into protected territories commits an offering, rendering it liable for downstream sales as an instigator or accomplice under Art. 62(1) UPCA and R. 211(1)(a) RoP.
On its website, U.S. company Pendulum facilitated international shipping and expressly identified the companies iHerb and Hebron to their websites as official retailers of the attacked medical products outside the United States via link. Applying CoA Philips v Belkin (3 October 2025) and CoA Sinocare & Menarini/Abbott (30 March 2026, UPC_CoA_899/2025), the LD The Hague held: “By directly linking interested parties to a website where they can place an order, Pendulum is offering the attacked products within the UPCA territory as well as Switzerland. Also, such subsequent sales are attributable to Pendulum if not as instigator, then at least as an accomplice to the offers and sales.”
Division
Local Division The Hague
UPC number
UPC_CFI_0001615/2026
Type of proceedings
Proceedings for provisional measures (R. 211 RoP)
Parties
Claimant: CAELUS LIFESCIENCES IP B.V.
Defendants: PENDULUM THERAPEUTICS INC. (Defendant 1), IHERB NETHERLANDS B.V. (Defendant 3)
Patent(s)
EP 2 753 187 B2
Jurisdictions
UPC, Switzerland
Body of legislation / Rules
R. 25.1 RoP, R. 44 RoP, R. 118.8 RoP, R. 158.2 RoP, R. 211 RoP, R. 213.1 RoP, R. 220.1(c) RoP, R. 224.1(b) RoP, R. 354 RoP, R. 355.4 RoP, Art. 54 UPCA, Art. 62 UPCA, Art. 65(1) UPCA, Art. 67 UPCA, Art. 73(2)(a) UPCA, Art. 80 UPCA, Art. 82 UPCA, Art. 37(2) Statute of the Court, Art. 56 EPC, Art. 69 EPC and Protocol on Interpretation, Regulation (EU) 2015/2283
