Constructive Knowledge and the Donkey-Kick: PI Urgency at the UPC
The Düsseldorf Local Division establishes a strict 'should have known' standard for PI urgency under Rule 211.4 RoP, while clarifying how explicit specification disclaimers limit claim scope.
The doctrinal boundaries of urgency in applications for provisional measures have been continuously refined since the Unified Patent Court opened its doors, particularly regarding the exact moment the clock begins to tick. The Düsseldorf Local Division’s recent order in UPC_CFI_1928/2025 pushes this boundary further, establishing a strict "should have known" standard for market-leading patentees.
The intuitive control requirement
The dispute centered on EP 3 001 984 B1, which claims a method for controlling an orthopedic joint of a lower extremity. The patent specifically addresses walking situations that deviate from level walking, such as alternating stair ascent. The core technical question was whether the accused prosthetic knee system infringed the requirement of comparing detected parameters with criteria in which several parameters are combined.
The panel, reading the claims through the lens of the specification, emphasised that the patent explicitly distinguishes itself from prior art that required unusual movements to activate special functions. Instead, the patent aims for an "intuitive control" (intuitive Steuerung) that relies on a natural movement scheme for a prosthesis wearer, requiring no conscious switching actions (reasons 74–75).
This proved legally significant when evaluating the accused embodiment. The panel found that the accused device requires a so-called "Donkey-Kick" to initiate stair ascent, a backward sliding movement extending the hip, followed by a fast forward movement flexing the hip. The panel characterised this as a conscious and marked initial movement (bewusste und markante Initialbewegung) rather than an intuitive one (reasons 85). Consequently, the panel could not establish infringement with the required sufficient certainty.
Constructive knowledge and the urgency clock
Even if infringement had been found, the application for provisional measures would have failed on procedural grounds. Under Rule 211.4 RoP, the Court must have regard to any unreasonable delay. The panel delivered a comprehensive framework for how this delay is calculated, firmly placing the burden of presentation on the applicant to demonstrate swift clarification of the facts.
Crucially, the panel held that the relevant period begins not just with actual knowledge, but when a "should have known" (Kennenmüssen) threshold is crossed. The panel stated that constructive knowledge must be assumed if, according to the traditional understanding and ordinary course of events, the applicant should have been aware of potentially infringing properties (reasons 97).
Applying this standard, the panel noted the applicant's extensive care network of over 400 locations and the accused product's prominent display at major European trade fairs, including Expolife in Kassel and OTWorld in Leipzig during the spring of 2025. Given this market presence, the panel concluded the applicant should have known of the potential infringement by early July 2025 at the latest (reasons 108). Waiting until October to acquire the device and until December to file the application constituted an unreasonable delay.
Practical implications
This order establishes that a patentee's size and market presence directly impact their procedural obligations at the Unified Patent Court. For large entities with extensive distribution networks, the "should have known" standard creates a de facto obligation to actively monitor major trade fairs and industry publications.
If a defendant can substantiate that an accused product was prominently exhibited, the burden shifts back to the applicant to explain why they remained ignorant or why their subsequent investigation was sufficiently swift. Practitioners advising market leaders must ensure that internal communication channels between commercial monitoring teams and IP departments are highly efficient; a delay in internal reporting will consume the narrow window for provisional measures.
Furthermore, the decision highlights the double-edged nature of the problem-solution approach in claim construction. By explicitly distinguishing the invention from prior art requiring "unusual movements" to achieve the technical effect of "intuitive control", the patentee successfully secured the grant but narrowed the enforceable scope, allowing a competitor to escape infringement by deliberately requiring a conscious and marked initial movement.