UPC CFI 80/2024 (ACT 9679/2024) – Vahterus Oy v Euro Heat doo

Court
Local Division Copenhagen
Date
Outcome
Permanent injunction granted, patent infringement found, costs awarded by default judgment.
Sector
Mechanics
Decision Type
Decision by default

Expert Commentary

Full Decision Text

Decision by default of the Court of First Instance of the Unified Patent Court Local Division Copenha- gen 15 January 2025 PLAINTIFF Vahterus Oy, having its registered office in Pruukintie 7, 23600 Kalanti, Finland, business ID 0839356-6, with its authorized signatory Mr. Mauri Kontu. Represented by the managing direc- tors Rudolf Franke and Rainer Kenter, Germany, represented by: Attorneys: Arttu Ahava and Matti Nousiainen Berggren Oy Eteläinen Rautatiekatu 10 A (PL 16), 00100 Helsinki, Finland . DEFENDANT Euro Heat doo, having its registered office at Industrijska bb, 34000 Kragujevac, Serbia Tel.: +38134 345 055 Fax: +38134 341 342 e-mail: stevan@euroheat.co.rs CEO Stevan Petković PATENT IN DISPUTE European patent EP 2673576. PANEL/CHAMBER Local Division Copenhagen Local Division Copenha- gen UPC 9679/2024 No. App. 54167/2024 2 PARTICIPATING JUDGES This decision was issued by the presiding judge Peter Juul Agergaard (rapporteur), the legally qual- ified judge Alima Zana and the legally qualified judge Mélanie Bessaud. LANGUAGE OF THE PROCEEDINGS English CLAIMS Plaintiff requests that the UPC: 1. grant under Article 63(1) UPCA a permanent injunction against the Defend- ant to make, offer, place on the market, or import into the UPC Member States in which European Patent no 2673576 is in force flooded evaporators with internal droplet separators in the scope of protection of said European Patent; 2. order under Article 63(2) UPCA that non-compliance with the permanent injunction referred to above shall be subject to a recurring penalty payment payable to the court of EUR 50 000; and 3. order under Article 69(1) UPCA the Defendant to pay the Plaintiff’s reason- able and proportionate legal costs and other expenses, including the court fees for this action as well as the Plaintiff’s costs of representation, which at the moment of lodging this Statement of Claim are EUR 11 000 in court fees and EUR 19575 in the costs of representation, together with interest thereon of seven per cent (7%) plus the key interest rate for deposits set by the European Central Bank as of one month from the date when the UPC issues its judgment. 3 DESCRIPTION OF THE FACTS The plaintiff Vahterus Oy (Vahterus) is a Finnish company that develops, manufactures and sells sustainable heat exchanger solutions. The defendant Euro Heat doo (Euro Heat) is a company based in Serbia that produces different types of plate heat exchangers. Vahterus has in particular pioneered the use of plate and shell heat exchangers, which provide a wide range of applications. These plate and shell heat exchangers form a core part of Vahterus’ business. Vahterus is the proprietor of European Patent 2673576: “A device for separating droplets and an use of such a device” (hereinafter the “patent in suit”). The patent in suit was filed on 9 February 2012 and claims the priority of 9 February 2011 and was granted as an European Patent on 30 October 2019. The patent in suit is in force. A typical embodiment of the patent in suit is a flooded evaporator with an internal droplet separator. While in a conventional design the evaporator and droplet separator would be different devices, the patented Vahterus invention combines the two in one compact casing, allowing significant cost sav- ings. According to the Statement of claim Vahterus first became aware in late 2020 that Euro Heat, a Ser- bian manufacturer of heat exchangers, was marketing on linkedin.com its own plate and shell heat exchanger that, based on the attached image, seemed similar to the invention disclosed in the patent in suit. Vahterus sent Euro Heat a letter notifying them of the Patent and a cease-and-desist concerning its marketing and sales of infringing products in early 2021, to which Stevan Petković, the CEO of Euro Heat replied in March 2021, indicating that Euro Heat had in fact never produced a heat exchanger such as the one pictured in the linkedin.com post, but rather that the picture was merely for “illustrative purposes”. 4 In October 2022 while attending Chillventa in Nuremberg Germany, Vahterus discovered that Euro Heat was advertising and exhibiting to European customers a flooded evaporator with an internal droplet separator that had a striking external resemblance to the invention disclosed in the patent in suit. In May 2023 Vahterus managed to obtain and open up a Euro Heat flooded evaporator with internal droplet separator that had been purchased by a third party in Denmark. The product did according to Vahterus not only externally, but also internally contain the features of the invention disclosed in the Patent. Having established that Euro Heat was marketing and selling to European customers a product incor- porating the independent claim of the Patent, Vahterus decided to file a request for an injunction with the UPC. MAIN ARGUMENTS OF THE PLAINTIFF JURISDICTION AND COMPETENCE International jurisdiction of the Unified Patent Court The Defendant is domiciled in Serbia, which is not a Member State of the Agreement on a Unified Patent Court (hereinafter “UPCA”) or of the European Union. The international jurisdiction of the Unified Patent Court (hereinafter “UPC”) is based on Article 31 UPCA and Article 71b (1)(2) of the recast Brussels Regulation (EU no 1215/2012 as amended), un- der which the rules on jurisdiction of a common court like the UPC under the Brussels Regulation apply to defendants not domiciled in a Member State. In particular, the jurisdiction of the UPC is based on Article 7(2), under which matters relating to tort, delict or quasi-delict can be heard in the place where the harmful event occurred or may occur. In this case and as established below, the infringement of the Plaintiff’s rights occurred in Denmark, a UPCA Member State. Competence of the UPC and of the Local Division in Denmark to hear the case The UPC has competence under Article 32(1)(a) UPCA over the case, as it concerns an action for actual infringement of a European Patent that has not been opted out from the exclusive compe- tence of the UPC. Under Article 33(1)(a) UPCA, the Local Division in Denmark of the Court of First 5 Instance is competent to hear the case, as the actual infringement occurred in Denmark, the Mem- ber State in which this Local Division is hosted. Plaintiff requests a permanent injunction against the Defendant on the basis that the Defendant is marketing, selling, and importing into UPC Member States where the Patent is in force products that directly infringe the Patent. Under Article 25 UPCA, a patent shall confer on its proprietor the right to prevent any third party not having the proprietor’s consent from […] a. making, offering, placing on the market or using a product which is the subject-matter of the patent, or importing or storing the product for those purposes. Defendant’s late and shell heat exchanger infringes the Patent The European Patent application, no 12744408.1, titled “Device for separating droplets and an use of such a device”, was filed with the European Patent Office (hereinafter “EPO”) on 9 February 2012, with a priority date of 9 February 2011, and it was granted as the European Patent no 2673576 on 30 October 2019. The Patent is in force in the following UPC Member States as of the date of this Statement of Claim: Denmark (patent number DK/EP 2673576 T3), Finland (patent number FI/EP2673576 T3), France (patent number EP 2673576), Germany (patent number EP 2673576), Italy (patent number EP 2673576) and Sweden (patent number SE2673576 T3) (all to- gether hereinafter “Protected Territory”). Outside the UPC, the Patent is also in force in Serbia (pa- tent number RS 59573 B1). The proprietor of the Patent is Vahterus Oy. The invention protected by the Patent is disclosed in its independent claim 1 (hereinafter the “Independent Claim”). As Vahterus will establish through a comparison of Euro Heat’s flooded evaporator with internal droplet separator (hereinafter “Infringing Product”) with the Independent Claim, the Infringing Prod- uct marketed on LinkedIn and at the Chillventa trade fair and imported and sold into Denmark di- rectly infringes the Patent by incorporating all of the features of the Independent Claim. 6 Euro Heat has infringed the Patent by marketing, selling and importing into the Protected Territory Infringing Products without the consent of Vahterus The Defendant is marketing and selling the Infringing Product to customers in the Protected Terri- tory, including at least Germany and Denmark, and has imported the Infringing Product into Den- mark. No consent has been sought or granted for Euro Heat’s sales and importing into Denmark of such a device. A permanent injunction and recurring penalty payment are necessary to effectively stop the infringement The UPC should order that non-compliance by Euro Heat with the permanent injunction referred to herein should be subject to a recurring penalty payment of EUR 50 000. The permanent injunction and the recurring penalty payment for breaching it are necessary, because without them there is a serious risk that Euro Heat will continue to market, sell or import products into the Protected Territory that infringe the Patent. Euro Heat has previously indicated to Vahterus that it has not and will not sell products similar to the invention disclosed in the Patent. However, these rep- resentations turned out to be untrue. The Defendant’s previous behavior raises doubts on whether it would cease its activities without a court injunction, or indeed voluntarily adhere to a court injunction without the threat of hefty monetary sanctions. Furthermore, the Defendant is based in Serbia. Without a readily enforceable injunction backed by monetary sanctions, enforcement of non-compliance would be difficult and onerous for the Plaintiff, requiring a new claim before a competent court and service of the claim to the Defendant’s home ju- risdiction of Serbia, which is likely to be a long and expensive process. This would defeat the object of this lawsuit and of the permanent injunction, which is to effectively stop the Defendant’s infringing activities. The Infringing Product incorporates all the features of the Independent Claim Plaintiff will present a point-by-point comparison of the features of the Independent Claim with the features of the Infringing Product obtained from Denmark (Euro Heat P600-510 H FW heat exchanger), as well with the features presented in the technical schematics for the product, as well as Euro Heat’s catalogue and other marketing materials for the Infringing Product. For the Court’s convenience, Plaintiff has annexed to the Statement of Claim a summary of the point- by-point comparison between the Infringing Product and the Independent Claim of the Patent. In detail, 7 Plaintiff will show that the Infringing Product comprises a device according to the Independent Claim 1 of the Patent. The Independent Claim 1 of the Patent reads as follows: Feature Wording of the Independent Claim 1 A device (1) for separating droplets, which comprises 2 an outer casing (2), which has a substantially horizontal cylindrical shell (14) and substantially vertical ends (9); 3 an inlet connection (7) for a substance to be vapourised for leading a substance to be vapourised into the outer casing; 4 a plate pack (3) functioning as an evaporator, which is arranged inside the outer casing, in its lower part (23); 5 an inlet connection (10) and an outlet connection (11) for a heating substance for leading a heating substance into the plate pack and out of it; 6 a gravitational droplet separator (4), which is arranged inside the outer casing (2), above the plate pack (3); 7 an outlet connection (8) for vapourised substance for leading the va- pourised substance out of the outer casing (2) from its upper part (15); characterised in that 8 8 the plate pack (3) is a substantially circular cylindrical plate pack, whereby the outer diameter of the plate pack is 30 – 70 % of the inner diameter of the cylindrical shell, wherein the plate pack (3) is in the longitudinal direction of the cylindrical shell, 9 longitudinal filler unit (12a, 12b) has been arranged inside the outer casing on both sides of the plate pack (3), between the outer casing (2) and the plate pack (3), which filler units (12a, 12b) are arranged to decrease the liquid volume of the substance to be vapourised in- side the outer casing, wherein the inner surface of the cylindrical shell (2) and the outer surface of the filler unit (12a, 12b) directed towards it are mutually substantially identical in shape and the outer surface of the plate pack (3) and the outer surface of the filler unit (12a, 12b) directed towards it are mutually substantially identical in shape 10 and in that a flow channel (19a, 19b) for the substance to be va- pourised and for the generated vapour has been arranged between the filler unit (12a, 12b) and the cylindrical shell (14). Feature 1 A device (1) for separating droplets, which comprises The Infringing Product is a device for separating droplets, as can be seen directly from the technical schematics for the Euro Heat P600-510 H FW heat exchanger dated 4 March 2021, which state that the plate and shell heat exchanger of type “P600-510 H FW” includes an internal droplet separator, and a “demister” (i.e.droplet separator) is disclosed in the recapitulation list in the documentation for the device (Ref. No: 7): 9 The internal droplet separator is also mentioned in Defendant's catalogue for the Infringing Product: Finally, Defendant’s marketing post on linkedin.com stated that the Infringing Product is a flooded evaporator with an internal droplet separator, as can be seen from the screenshot below: 10 The Infringing Product includes feature 1 of the Independent Claim. Feature 2 an outer casing (2), which has a substantially horizontal cylindrical shell (14) and substantially vertical ends (9): The Infringing Product comprises an outer casing with a substantially horizontal cylindrical shell and substantially vertical ends, as can be seen from a comparison of Fig. 1 of the Patent with the Infringing Product presented in the Defendant's marketing materials (reference num- bers added which correspond with the Patent), in the technical schematics for “P600-510 H FW” heat exchanger and in the photographs taken from the “P600-510 H FW” heat exchanger: 11 The horizontal cylindrical shell of the Infringing Product (reference number 9 in the technical schemat- ics) corresponds with the horizontal cylindrical shell of the Patent (reference number 14 in Fig.1 of the Patent). Correspondingly, the vertical ends of the Infringing Product (reference numbers 1 and 10 in the technical schematics) correspond with the vertical ends included in the Independent Claim of the Patent (reference numbers 9 and 2 in Fig. 1 of the Patent). The Infringing Product includes feature 2 of the Independent Claim. Feature 3 an inlet connection (7) for a substance to be vapourised for leading a substance to be vapourised into the outer casing; The Infringing Product includes an inlet connection for a substance to be vaporized for directing the vaporizing substance into the outer housing, as can be seen from a comparison of Fig. 1 of the Patent with the technical schematics for the “P600-510 H FW” heat exchanger: lnfringing pmduct: , t FUS:Ullil 1,1. ,u. The inlet connection is also visible in a photograph taken of the product shipped to Denmark: 7: Supplementary pictures of P600-510 H FW, 5 July 2023 In the technical schematics for the “P600-510 H FW” heat exchanger, N3 is expressly named as a cold side inlet, which means that it is an inlet connection for leading a substance to be vapourised into the outer casing. This is also confirmed in the other drawing in the same technical schematics which shows that connection marked as reference number 11 is a connection on the shell side. The inlet connection can be also seen from the photograph taken from the Infringing Product. The Infringing Product includes feature 3 of the Independent Claim. Feature 4 a plate pack (3) functioning as an evaporator, which is arranged inside the outer casing, in its lower part (23): The Infringing Product has a plate pack which acts as an evaporator and which is arranged in the lower part of the outer casing, as can be seen from a comparison of FIG. 2 of the Patent with Defendant’s post on linkedin.com from 2019: The below photographs of the “P600-510 H FW” heat exchanger shipped to Denmark also show the plate pack and how it is placed inside the lower part of the outer casing: In the photographs, the plate pack has been drawn out from the outer casing, through one end of the outer casing. From the photographs can be seen that when the plate pack is in its place inside the outer casing, it is situated in the lower part of the outer casing. This can also be seen from the way in which the end of the plate pack is eccentrically fixed to the vertical end of the outer casing. Based on the arrangement of the plate pack in the Infringing Product, it is clear that the plate pack is functioning as an evaporator in the flooded evaporator. Defendant’s post on linkedin.com also clearly states that the Infringing Product is a flooded evaporator. The Infringing Product includes feature 4 of the Independent Claim. Feature 5 an inlet connection (10) and an outlet connection (11) for a heating substance for leading a heating substance into the plate pack and out of it: The Infringing Product has an inlet and an outlet connection for a heating substance for leading a heating substance into the plate pack and out of it, as can been from a comparison of FIG. 2 of the Patent with the Infringing Product presented in the Defendant's catalogue (reference numbers added which corre- sponds with Patent): This feature is also shown on the technical schematics for the “P600-510 H FW” heat exchanger, and the photographs of the “P600-510 H FW” heat exchanger shipped to Denmark. In the technical schematics for the “P600-510 H FW” heat exchanger, N1 and N2 are expressly named as a hot side inlet and a hot side Finally, the inlet and outlet connections are also shown in Defendant’s post on outlet, which means that they are inlet and outlet connections of the plate pack. The inlet and outlet con- nections can be also seen from the photograph taken from the Infringing Product: linkedin.com: The Infringing Product includes feature 5 of the Independent Claim. Feature 6 a gravitational droplet separator (4), which is arranged inside the outer casing (2), above the plate pack (3): The Infringing Product has a gravitational droplet separator, which is arranged inside the outer casing above the plate pack, as can be seen from a comparison of FIG. 2 of the Patent with Defendant’s post on linkedin.com and a photograph of the “P600-510 H FW” heat exchanger shipped to Denmark: Patent: The Infringing Product includes feature 6 of the Independent Claim. Infringing product: The technical schematics for the heat exchanger shipped to Denmark also state that the plate and shell heat exchanger of type “P600-510 H FW” includes a demister, e.g. droplet separator (Ref. No: 7): A demister is a device fitted to vapor–liquid separator vessels to enhance the removal of liquid droplets entrained in a vapor stream. A demister is a gravitational droplet separator, which means that the separation of droplets is based on gravity. On paragraph [0042] of the Patent, it is disclosed that a demister consists of two vapour-permeable demister parts 5 and 5’, which can be seen in the photograph above of the “P600-510 H FW” heat exchanger shipped to Denmark. Feature 7 an outlet connection (8) for vapourised substance for leading the vapourised substance out of the outer casing (2) from its upper part (15): The Infringing Product has an outlet connection for the vapourised substance for leading the vapourised substance out of the outer casing (2) from its upper part, as can be seen from a comparison of FIG. 2 of the Patent with the Infringing Product presented in the Defendant's cata- logue (reference numbers added which corresponds with Patent): Patent: The outlet is also presented in Defendant’s linkedin.com post: Finally, the outlet connection is also displayed in the technical schematics for the “P600-510 H FW” heat exchanger: In the technical schematics for the “P600-510 H FW” heat exchanger, N4 is expressly denoted as a cold side outlet, which means that it is an outlet connection for leading the vapourised substance out of the outer casing. This is also confirmed in the other drawing in the same technical schematics which shows that connection marked as reference number 12 is a connection on the shell side. The outlet connection is located in the upper part of the outer casing. The outlet connection can be also seen in a photograph taken from the inside of the Infringing Product shipped to Denmark, where the outlet connection is visible above the droplet separator: The Infringing Product includes feature 7 of the Independent Claim. Feature 8 [characterised in that] the plate pack (3) is a substantially circular cylindrical plate pack, whereby the outer diameter of the plate pack is 30 – 70 % of the inner diameter of the cylindrical shell, wherein the plate pack (3) is in the longitudinal direction of the cylindrical shell, In the Infringing Product, the plate pack is a substantially circular cylindrical plate pack, and it lies in the longitudinal direction of the shell, when it is arranged inside the outer casing, as can be seen from the Defendant’s post on linkedin.com1 and the photographs taken of the “P600-510 H FW” heat exchanger shipped to Denmark: In the Infringing Product, the outer diameter of the plate pack is 30-70% of the inner diameter of the cylindrical shell, as can be seen from the Defendant’s post on linkedin.com: In the Infringing Product shipped to Denmark, the outer diameter of the plate pack is also 30-70% of the inner diameter of the cylindrical shell, as can be seen from the photographs of the “P600-510 H FW” heat exchanger: In the Infringing Product shipped to Denmark, the outer diameter of the plate pack is 56 cm whereas the inner diameter of the outer casing is 88 cm, i.e. the outer diameter of the plate pack is 63 % of the inner diameter of the casing. This falls within the range of 30-70 % defined in the Independent Claim. The Infringing Product includes feature 8 of the Independent Claim. Feature 9 longitudinal filler unit (12a, 12b) has been arranged inside the outer casing on both sides of the plate pack (3), between the outer casing (2) and the plate pack (3), which filler units (12a, 12b) are ar- ranged to decrease the liquid volume of the substance to be vapourised inside the outer casing, wherein the inner surface of the cylindrical shell (2) and the outer surface of the filler unit (12a, 12b) directed towards it are mutually substantially identical in shape and the outer surface of the plate pack (3) and the outer surface of the filler unit (12a, 12b) directed towards it are mutually substantially identical in shape The Infringing Product includes the longitudinal filler units, arranged inside the outer casing on both sides of the plate pack between the outer casing and the plate pack. The inner surface of the cylindrical shell and the outer surface of the filler unit directed towards it are mutually substantially identical in shape and the outer surface of the plate pack and the outer surface of the filler unit directed towards it are mutually substantially identical in shape, as can be seen from a comparison of FIG. 2 of the Patent with the Defendant’s post on linkedin.com and the photographs taken of the “P600-510 H FW” heat exchanger shipped to Denmark: lnfringing produet: Filler units Fil!er units 28 In the photograph above taken of the “P600-510 H FW” heat exchanger shipped to Denmark, the plate pack would be situated between the longitudal filler units in normal use of the Infringing Product, i.e. when the plate pack is set inside the outer casing. The design of the fillers units of the Infringing Product corresponds in this respect almost identically to FIG. 2 of the Patent. It is also clear that the aim of the filler units is to decrease the liquid volume of the substance to be vapourised inside the outer casing since the Infringing Product is used as a flooded evaporator. Furthermore, the filler units are mentioned as “filling boxes” in the technical schematics for the “P600-510 H FW” heat exchanger shipped to Denmark. The filling boxes are also mentioned in the recapitulation list included in the technical schematics (Ref. No: 6, quantity: 2): The Infringing Product includes feature 9 of the Independent Claim. Feature 10 and in that a flow channel (19a, 19b) for the substance to be vapourised and for the generated vapour has been arranged between the filler unit (12a, 12b) and the cylindrical shell (14). 29 The Infringing Product has a flow channel between the filler units and the cylindrical shell, as can be seen from a comparison of FIG. 2 of the Patent with the Defendant’s post on linkedin.com: 30 The flow channel is also visible in photographs of the “P600-510 H FW” heat exchanger” shipped to Denmark: The arrangement of the Infringing Product is in this respect again identical to the arrangement according to FIG. 2 of the Patent. The Infringing Product includes feature 10 of the Independent Claim. 31 Consequently, and as established above, the Infringing Product as depicted in the Defendant’s linkedin.com post from 2019, catalogue from Chillventa 2022, and technical schematics and product shipped to Denmark in 2021, includes all of the features of the Independent Claim. Euro Heat has infringed the patent in suit by selling and importing the Infringing Product into Denmark Euro Heat has infringed the patent in suit by selling and importing an Infringing Product to NH 3 Solutions A/S in Denmark, where the Patent is in force. NH 3 Solutions A/S, a Danish contractor operating in Zealand, was in 2021 looking for a plate and shell heat exchanger for one of its clients, Toms Group A/S. They were unable to order from Vahterus due to long delivery times, so they instead ordered a plate and shell heat exchanger from Euro Heat. Euro Heat shipped a plate and shell heat exchanger to NH3 Solutions A/S in Zealand, Denmark, of the type “P600-510 H FW” with an invoice dated 1 June 202. After the device was installed at the facility of Toms Group A/S in Ballerup, Zealand, NH3 Solu- tions A/S discovered that the product was leaking and entered discussions with Vahterus regard- ing a replacement. Personnel from Vahterus visited the Toms Group A/S facility in person on 23 January 2023 and took a picture of the product in situ. The Vahterus personnel and NH3 Solutions A/S arranged to ship the product to Finland for examination. The “P600-510 H FW” heat exchanger arrived in Finland in April 2023 and was disassembled and photographed at Vahterus’ facility on 26-27 April 2023 by Vahterus engineers Mr Jarmo Sainio and Ms Senni Pirilä. One end plate of the heat exchanger was removed, and the plate pack was drawn out from the outer casing, and the plate pack, outer casing, and inner parts of the heat exchanger were separately photographed. Vahterus personnel also had the opportunity to examine the technical schematics provided for the product, which had likewise been acquired from NH 3 Solutions A/S. 32 During their investigation of the product in question and as provided for above in section 5.1, the P600-H510 H FW heat exchanger shipped to Denmark was found to incorporate all the features of the Independent Claim of the Patent. Due to the distribution of weight of the heat exchanger with its plate pack removed, the product was placed upside down while it was being photographed to prevent it rolling over in an unsafe manner, which can be deduced from the severed legs of the heat exchanger being shown at the top of the casing. A photo of the same product in situ at the Toms Group A/S facility in Denmark shows it normal orientation. Furthermore, the photos taken in April were later supplemented by a photo more clearly showing the diameter of the plate pack of the P600-H510 H FW heat ex- changer in comparison to the diameter of the outer casing, establishing that the product also fulfils feature 8 of the Independent Claim, i.e. that the outer diameter of the plate pack is 30-70% of the inner diameter of the cylindrical shell. Based on the above, the Plaintiff has definitively shown that an Infringing Product, incorporating all of the features of the Independent Claim of the Patent, was sold and imported to a customer in Denmark in 2021 in breach of the Patent. Euro Heat has infringed the patent in suit by marketing and selling the Infrining Product at the Chillventa trade fair in Germany The Chillventa event, a biannual trade fair organized in Nuremberg, Germany, is the world’s lead- ing exhibition for refrigeration technology. Euro Heat was signed up as an exhibitor at the trade fair, held on 11 to 13 October 2022. At the Chillventa 2022 fair, Vahterus personnel photographed a flooded evaporator with internal droplet separator that seemed to externally contain the features of the Independent Claim, as well as a catalogue marketing the same kind of product. Given the investigation into the Infringing Product delivered to Denmark referred to above, there is little doubt that the product Euro Heat was marketing and displaying at Chillventa was like- wise an Infringing Product. It is important to note that the Chillventa trade fair is the premier in- dustry event for heat exchangers worldwide, so the intended audience for products marketed there is not only Germany, but all of Europe and even customers outside Europe. By marketing 33 its Infringing Products at the Chillventa trade fair in Nuremberg, Euro Heat has continued its in- fringing activities in 2022, with the aim of marketing and selling its products in Germany and throughout the Protected Territory. Euro Heat has infringed the patent in suit by marketing the Infringing Product through linkedin.com and its own website throughout the Protected Territory In addition to the infringing activities mentioned above, Euro Heat has at least since 2019 mar- keted flooded evaporators with internal droplet separators to customers throughout Europe through social media accounts like linkedin.com and in product catalogues on its websites. This marketing has been constant, and as far as Plaintiff is aware continues even as of the date of the Statement of Claim, showing that the Infringing Product sold to Denmark is not an isolated case, but part of a pattern of systematically breaching the Patent throughout the Protected Ter- ritory. As previously mentioned, the Defendant’s CEO has been advertising flooded evaporators with internal droplet separators, which are presumably Infringing Products similar to the one disas- sembled in Denmark, since at least 2019 on his linkedin.com page. It is clear that these market- ing messages are aimed at a non-Serbian public, as they are posted on a social media gener- ally accessed by members of the international business community, and the language used is English, whereas marketing at a domestic public would not be in the English language. Further- more, the Defendant’s CEO constantly refers to the company’s efforts to export its products, showing that the marketing activities are primarily aimed at a foreign, presumably European public. Furthermore, the Defendant has marketed, and continues to market flooded evaporators with internal droplet separators on its own website. The fact that the website is presented in the Eng- lish language, and that there are payment instructions for customers paying in euros also shows that this marketing is aimed not at the domestic public, but at customers in Europe. Overall, the constant and continuing marketing of the Infringing Products to European customers shows that Euro Heat has continued its infringing activities from 2019 and will continue to do so if no injunction is issued against them”. 34 E-mail received 19 June 2024 from defendant Euro Heat with counter statement The local division Copenhagen received 19 June 2024 an e-mail from attorney-at-law Vladimir M. Jankovic on behalf of Euro Heat stating the following: “SUBJECT: Submission to the Court of first instance/Danish local division (UPC) Please do notice that we hereby submit in the attachment to this mail, two separate documents: counter statement of the client and the power of attorney. Namely, as our client EURO HEAT doo Kragujevac (Republic Of Serbia) has been submitted with the docu- mentation entitled as “Statement of Claim” issued by the Vahterus Oy, Pruukintie 7, Kalanti (Finland) and registered (filed) before the UPC Court of first instance-Danish local division, however without any direc- tions on the ground basis of the potential jurisdiction to the said Court, neither with any directions regard- ing the governing procedure or available remedies etc, we hereby submit attached Counter Statement, as restricted to the purposes of non-acceptance of the jurisdiction of [the UPC Court of first instance, Danish local division], as Serbia has not been either a member state of the UPCA nor of the EU or EEC. Respectfully Vladimir M. Jankovic, attorney-at-law ADVOKATSKA KANCELARIJA VLADIMIR M. JANKOVIĆ Ul. Lole Ribara br.2 34 000 KRAGUJEVAC REPUBLIKA SRBIJA TEL +381 (0) 34 331 825 FAX +381 (0) 34 302 826 Mobtel + 381 (0) 65 618 5289” Counterstatement from Euro Heat: The attached counterstatement dated 17 June 2024 stated the following: “As our client was served through the Basic Court in kragujevac, within the proce- dure for intemational legal assistance conducted at the court under the case number Pom.i.no.25/2024, and through this procedure the client was submitted with the doc- ument marked as ”Court of First Instance of the unifled patent court/Danish local department” ”Statement of Claim”, we hereby submit this document along with the Counter Statement to the said submission, which should be forwarded to the sender,As in the documentation submitted to our client, no method of of communi- cation was indicated, nor was any instruction given regarding legal remedies and the procedure regarding available legal remedies, so we request that this submission be sent to the sender by this court. 35 PRVOSTEPENI SUD JEDINSTVENOG SUDA ZA PATENTE DANSKO LOKALNO ODELJENJE Ama- licgade 35, 1256 Kopcnhngcn, Danskn e-mail ad- dress: contact copenhagen.loc@unifiedpatentcoutt.org Pravni zastupnik EURO IIEAT doo Kragujcvac (Srbija): Advokat „Vladimir M. Jankovié" UI. Lole ribara br.2 34 000 Kragujevac Republika Srbija Registarski broj: 386/98 OAK Kragujevac MATICNI BROJ:55199345 PIB: 100560964 br. telefona: + 381 (0)34 302 826 e-mail: vladimir.jankovic@vmjank.legal.com Veza: "Tuibeni zahtev" Tuiilac: "Vahterus Oy", sa sediötem u Pruukiritie 7, 23600 Kalanti, Finska, koga zastupa: Arrtu Ahava, Berggren Oy, Etelainen Rautatiekatu IOA (PL 16), 00100 Helsinki, Finska, Tu%eni: Euro Heat doo Kragujevac, Industrijska bb, 34000 Kragujevac adresa za prijem el.poste: stevan@euroheat.co.rs, MB: 20651474, PIB: 106647543, éiji je zakonski zastupnik Stevan Petkovié, direktor, JMBG: 1305979720024, koga po punomoéju za- stupa Vladimir Jankovié, adv, iz Kragujevca, ul, Lole Ribara br.2, u prilogu. Ad.l. Osnovne éinjenice (A) Kompanija EURO HEAT doo Kragujevac (Srbija) primila je preko Osnovnog suda u Kragujevcu (Srbija), pismeno koje je oznaöeno kao "Tuibeni zahtev" u revodu COURT OF FIRST INSTANCE OF THE UNIFORM PATENT COURT DANISII LOCAL DEPARTMENT Amnlicgade 35, 1256 Copenhagen, Denmark e-mail address: contact copenhagen.loc@unifiedpatentcourt.org Legal representative EURO HEAT doo Kragujevac (Serbia) Attorney-at-law„Vladimir M. Jankovié" Street Lole ribara no.2 34 000 Kragujevac Republic Of Serbia Registration No: 386/98 BAR Kragujevac IDNETIFICATION NO: 55199345 PIB: 100560964 phone no. + 381 (0)34 302 826 e-mail: vladimir.jankovic@vmjank.legal.com Ref. Plaintiff: "Vahterus Oy", sa sediötem u Pruukiritie 7, 23600 Kalanti, Finska represented by: Arrtu Ahava, Berggren Oy, Etelainen Rautatiekatu IOA (PL 16), 00100 Helsinki, Finland, Defendant: Euro Heat doo Kragujevac, Industrijska bb, 34000 Kragujevac e-mail address: stevan@euro- heat.co.rs, MB: 20651474, PIB: 106647543, whose le- gal representative is Stevan Petkovié, director, JMBG: 1305979720024, represented by empowered attorney- at-law, Vladimir Jankovié, from Kragujevac, Lole Rib- ara street No. 2, (Power of attorney-attached). Ad.l. Basic facts (A) The company EURO HEAT doo Kragujevac (Ser- bia) received through the Basic Court in Kraguje- vac (Serbia), a letter marked as "Tuibeni zahtev" in Serbian translation , i.e. 36 na srpski jezik), tj. kao "Statement Claim" (u izvorniku na engleskom jeziku). (B) Iz ovog podneska, zakljuöuje se da je kao tuiilac oznaeena kompanija "Vahtcrus Oy", sa sediStem u Pruukiritie 7, 23600 Kal- anti, Finska (sa bliie oznaeenim drugim iden- tifikacionim podacitna kao u navedenom "Statement Claim" /uvodni deo). (C) U ovom "Tuibenom zahtevu", kao tuieni ("Defendant") oznaeena je kompanija EURO HEAT doo Kragujevac (Srbija) — sa bliiim identifikacionim podacima kao u „Statement Claim". (D) lz ovog dokumenta takode, utvrduje se da je tuiilac navedeni Tuibeni zahtev podneo Prvostepenom sudu jedinstvenog suda za pa- tenteDansko lokalno odeljenje i da svoj zatehv zasniva na tvrdnji da je tuieni povrediko evropski patent br. 2673576 („Uredaj za izdva- janje kapljica i upotreba takvog uredaja"). (E) Nakon Sto je ovaj podnesak uruöen EURO HEAT doo Kragujevac (Srbija), preko Osnov- nog suda u Kragujevcu, kompanija EURO HEAT doo Kragujevac (Srbija) se kako sledi: IZJASNJENJE TUZENOG (1) Kompanija EURO HEAT doo Kragujevac (Srbija), osporava nadle%nost UPC suda u ovom sluéaju po tuZbi koja je podneta u Kraljevini Danskoj navedenom sudu [UPC (Dansko lokalno odeljenje), a koja je do- stavljena kompaniji EURO HEAT doo Kragu- jevac (Srbija) putem medunarodne pravne pomoéi; (2) U navedenom podnesku — oznaé- enom kao "Tuibeni zahtev" kao ni u prateéoj dokumentaciji UPC suda (kojaje izostala), nisu dostavljeni nikakvi uputi o naöinu komu- nikacije sa UPC, niti o pravima tuieno . Sa dru e strane kom ani'a as "Statement of Claim" (as reffered in the original document in English language). (B) From this document, it is concluded that the Plaintiff is the company "Vahterus Oy", with its registered office at Pruukiritie 7, 23600 Kalanti, Finland (with other identification data more closely indicated as in the stated "Statement of Claim" /introductory part). (C) In this "Statement of Claim", the com- pany EURO IIEAT doo Kragujevac (Serbia) is in- dicated as the Defendant ("Defendant") with closer identification data as in the "Statement of Claim"/introductory part. (D) From this document, it is also deter- mined that the plaintiff submitted the above-men- tioned Claim to the Court of First Instance of the Unified Patent Court/Danish Local Division and that the claim is based on the claim that the defend- ant infringed European patent no. 2673576 ("De- vice for extracting droplets and use of such de- vice"). (E) After this submission was delivered to EURO HEAT doo Kragujevac (Serbia), through the Basic Court in Kragujevac, the company EURO HEAT doo Kragujevac (Serbia) declares as follows: COUNTER STATEMENT (1) The company EURO HEAT doo Kragu- jevac (Serbia) contests the jurisdiction of the UPC court in this case based on a lawsuit filed in the Kingdom of Denmark to the aforementioned court (UPC (Danish local department), which was deliv- ered to the company EURO HEAT doo Kragujevac (Serbia) via international legal assistance; (2) In the aforementioned submission - marked as "Statement of Claim", as well as in the accompanying documentation of the UPC court (which was missing), no instructions were submit- ted on the method of communication with the UPC, nor on the 37 EURO HEAT doo Kragujevac (Srbija) nema sedište na teritoriji bilo koje države članice UPCA ili EU ili evropske ekonomske zajednice (EEZ), te ne podleže nikakvoj obavezi da bude upoznata, informisana ili da bude pravno obvezana UPCA propisima ili procedurama, niti pod njegovom jurisdikci- jom. Na navedeni način povredena su prava kompanije EURO HEAT doo Kragujevac (Srbija) na odbranu i efikasno pravno sredstvo; (3) U navedenom ”Tužbenom zahtevu”, tužilac primaje da tuženi ima sedište u Srbiji. Šta više, takode se u tužbi priznaje da Srbija nije država članica UPCA niti članica EU ili EU zone ili EEZ, niti je potpisnica UPCA sporazuma kojim se ustanovljuje UPC kao sud posebne nadležnosti i dalje regulišu pravila prostiranja i zasnivanja jurisdikcije ovog suda; (4) Naime, nadležnost UPC se ne može zasnivati na čl.7(2) Brisel I bis, zato što se ČI. 7 u celini primenjuje samo na tužene koji imaju sedište ili prebivalište u državi članici UPCA konvencije (sporazuma). Ovo direktno sledi iz norme čl.7, kojijasno kaže: „Lice sa sedištem/prebivalištem državi član- ici može biti tuženo u drugoi državi članici:”. Posle ove rečenice, član 7 Uredbe nastavlja sa nabrajanjem tačaka (17) koje su primen- jive samo ako tuženi ima sedište/prebivalište u iednoi od država članica. (5) Prema tome, UPC ne može biti nadležan u ovom predmetu i mora da se pri- menjuje pravilo lexfori. (6) U čl.6 navedene Uredbe, se po- sebno pominju tuženi koji nemaju se- dište/prebivalište u državi članici UPCA spo- razuma, Ako tuženi nema rebivalište/sedište u državi članici rights ofthe Defendant. On the other hand, the com- pany EURO HEAT doo Kragujevac (Serbia) does not have its seat on the territory of any UPCA or EU or European Economic Community (EEC) member state, and is not subject to any obligation to know or be infromed of, or to recognize and be legally binded by the UPCA regulations, procedures or itsjurisdic- tiona So, in the above manner, the fundamental rights of EURO HEAT doo Kragujevac (Serbia) to defense and to access to an effective legal remedy were vio- lated; (3) In the aforementioned ”Statement of Claim”, the Plaintiff clearly admits that the De- fendant is based in Serbia, Furthermor, in the „Statement of Claim” is also admitted that Serbia is not a member state ofthe UPCA nor a member of the EU or the EU zone or the EEC, nor is it a signatory to the UPCA agreement establishing the UPC as a court of special jurisdiction and the rules of the extension and establishment of the ju- risdiction ofthis court further regulated in it; (4) Namely, the jurisdiction ofthe UPC cannot be based on art. 7(2) Brussels I bis, be- cause art. 7 as a whole applies only to defendants who have their seat or residence in a member state of the UPCA Convention (agreement). This fol- lows directly from the norm of Article 7, which clearly states: ”A person with headquarters/resi- dence in a member state may be sued in another member state:”. After this sentence, Article 7 ofthe Regulation continues with the enumeration ofpoints (l -7) which are applicable only if the de- fendant has its seat/residence in one of the mem- ber states. (5) Therefore, the UPC cannot be compe- tent in this case and the lexfori rule must be ap- plied. (6) In Article 6 ofthe aforementioned Reg- ulation, defendants who do not have their seat/residence in a member state ofthe UPCA agreement are specifically mentioned. If the de- fendant does not have a residence/seat in a 38 of5 nadleinost sudova svake drmve élanice ée, u skiadu sa él.18(1), el.21(2) i el.24. i 25, biti odredcni zakon te driave élanice. (7) Prema tome, ni po el.6 ni PO el.7. ove Uredbe, nije moguée ustanoviti jurisdikciju UPC suda u Danskoj za konkretan slueaj. (8) Sa svega napred navedcnog, predla}emo da UPC odbaci podnetu tuibu kao nedozvoljenu. PRILOG: l) Punomoéje za zastupanje. Kragujevac, 17. jun 2024. U ime kompanije EURO HEAT doo Kragujevac Punomoénik Vladimir M. Jankovié, advokat ADVOKAT Vladimir M. Jankovié u]. Lole Ribara br.2 BJIAAI/IMI/IP Digitally signed by BJIAAVIMVIP JAHKOBVlh JAHKOBVITI 231296872 23129687200222312968720022 0022-23129 Date: 2024.06.19 68720022 member state, the jurisdiction of the courts of each member state will, in ac- cordance with art, 18(1), art.21(2) and art.24. and 25, be determined by the law of that member state. (7) Therefore, neither according to Article 6 nor according to Article 7. of this Regulation, it is not possible to estab- lish the jurisdiction of the UPC court in Denmark for a specific case. (8) Based on all of the above, we suggest that the UPC dismiss the filed lawsuit as inadmissible. ATTACHED. l) Power of attorney Kragujevac, June 17, 2024 On behalf of the company EURO HEAT doo Kragujevac Attorn Vladimir M. Jankovié, att-at-law ADVOKÄT Vladimir M. Jankovié KRAGUJEVAC, ul. Lole Ribara br.2 39 E-mail from Local Division Copenhagen dated 24 June 2024 to Vladimir M. Jankovic The local division Copenhagen sent a response via e-mail dated 24 June 2024 to Vladimir M. Jankovic stating: "Dear Mr. Vladimir Jankovic, The Danish Local Division of UPC has received your e-mail from 19 June 2024 on behalf of EURO HEAT doo Kragujevac (Serbia). You have included a "Counter Statement" where you state that UPC is not competent and that the lawsuit shall be dismissed. According to Rule 19, 1a of the UPC Rules of Procedure a party can within one month of service of The Statement of Claim lodge a Preliminary objection concerning the jurisdiction and competence of The Court. Rule 19, 2a states what a preliminary objection shall contain. If a party wants to object to the competence of the court the party can therefore file a preliminary objec- tion according to Rule 19, 2a. You should consider if you are competent to represent the party according to Article 48, 1 of the Agree- ment on a Unified Patent Court and Article 8 of the UPC Rules of Procedure…” The local division Copenhagen did not hear back from Vladimir M. Jankovic nor Euro Heat here- after. Document of service from Serbian Authorities: The Local Division Copenhagen received the following document of Service from the Serbian Authorities dated 28 June 2024: Прилог: као у тексту CERTIFICATE ATTESTATION POTVRDA The undersigned authority has the honour to certify, in conformity With Article 6 of the Convention, L'autorité soussignée a l'honneur d'attester conformément à l'article 6 de ladite Convention, Dole potpisani organ ima bast da, u skladu sa Elanom 6. Konvencije potvrdi 1) that the document has been served 40 1) que la demande a été exéxutée (EURO HEAT » doo 1) *da su akti dostavljeni - the (date) - le (date) - dana (datum) - at (place, street, 34000 Kragujevac ; ul. Idustriska bb number) à (localité, rue, numéro) -u(mesto, ulica, kuéni br) in one of the following methods authorised by Article 5: dans une des formes suivantes prévues à "article 5 : - na jedan od sledeéih nabina predvidenih élanom 5.: t I (a) in accordance With the provisions of sub-paragraph (a) of the first paragraph of Article 5 of the Convention.• ( l (a) selon les formes légales (article 5, alinéa premier, lettre a)' (a) na naëln prevlden taëkom (a) prvog stava ŒIan 5. Konvencijet. [ I (b) in accordance With the following particular method:• t (b) selon la forme particulière suivante*• [l (b) na sledeéi poseban nabin [ ) (c) by delivery to the addressee. Who accepted it voluntarily.* [ I (c) par remise simplet. t I (c) isporukom priamaocuj koji je dobrovoljno prihvatio û. The documents referred to in request have been delivered to: Les documents mentionnés dans la demande ont été remis à Akti iz zamolnice uruëeni su: (identity and description of person) (identité et qualité de la personne) (idontitet i opis lica ) ovlaééonom zasupniku « EURO HEAT » doo potpls : Mladen Velikié relationship to the addressee (family, business or Other): liens de parenté. de subordination ou autres. avec le destinataire de l'acte • odnos sa prlmaocom (porodiëni, poslovni Ili drugi): that the document has not been served, by reason of the following facts: que la demande n'a pas exécutée, en rasion des faits suivants: da akta nisu dostavtjena iz sledeéih razloga: ln conformity With the second paragraph of Article 12 of the Convention, the applicant is requested to pay or reimburse the expenses detailed in the attached statement. • Conformément à l'article 12, alinéa 2, de ladite Convention, le requérant est prié de payer ou de rembourser les frais dont le détail figure au mémoire ci-joint Saglasno élanu 12. KonvenciJe, podnosilac zamolntce obavezan Je da plati ili nadoknaditi troikove navedene u prito±enoJ izjavi•: ANNEXES PRILOZI Documents retumed: Pièces renvoyées • Vraéena akta: En appropriate cases, documents establishing the service: Le cas échéant, les documents justificatifs de l'exécution : U odgovaraJuéim sluëajevima, akta koja potvrduju dostavu: Stamp Signature et/o Potpi/peëat * Delete if inappropriate Rayer les mentions inutiles Nepotrebno precflati Signature and/or Done at Kragujevac , the Fait à , le 28.06. god. 2024. 41 Euro Heat did not afterwards within one month of service of the Statement of Claim lodge a Preliminary objection in the CMS according to rule 19 (1) (a) and (b) concerning the jurisdiction and competence of the Court and division. Request for a decision by default dated 2 October 2024 (No. App. 54167/2024) Vahterus requested a decision by default in its pleading dated 2 October 2024: “… Application for a Decision by Default Under Rule 355 RoP The Plaintiff respectfully requests under Rule 355 of the RoP that the UPC give a decision by default in this matter on the basis of the Plaintiff’s Statement of Claim, as the Defendant has failed to submit a timely Statement of Defence as required by the RoP. Such a decision should be given as soon as possible. Under Article 37 of the Statute of the UPC, a decision by default may be given at the request of a party to an action, where the other party, after having been served with a document instituting proceedings, fails to file written submissions in defence. Un- der Rule 355(1)(a) of the RoP, the decision by default may be given if a party fails to take a step within the time limit set in the RoP. Under Rule 23 of the RoP, the Defendant shall lodge a Statement of Defence within three months of service of the Statement of Claim. In this case, the Statement of Claim was served upon the Defendant by the UPC on 28 June 2024. As the initial deadline fell on the weekend, under Rule 301 of the RoP the time limit to file a Statement of Defence fell upon 30 September 2024. To the best knowledge of the Plaintiff, the Defendant failed to file a Statement of Defence by 30 September 2024 (or indeed at all). Based on the above failure to file the Statement of Defence within the time limit set forth in the RoP, the Plaintiff requests that a decision by default be given in the matter at hand. 42 No obstacles to granting a decision by default In this case, there are no obstacles to granting a decision by default, and therefore such a decision should be given by the UPC. Under the UPC, potential bars to issuing a decision by default in such a case are incorrect service of the Statement of Claim (Rule 277 of the RoP), failure of the Plaintiff to put forward facts that justify the remedy sought (Rule 355(2) of the RoP), or the procedural conduct of the Defendant (Rule 355(2) of the RoP). In this case, there can be no question of incorrect service, as the Statement of Claim has been duly served upon the Defendant through the Hague Convention system by the UPC. Furthermore, the Plaintiff has robustly argued its case and provided sufficient evi- dence to the UPC to establish infringement of its European Patent by the Defendant, justifying the remedies sought from the Court. Finally, the Defendant has been entirely passive and failed to participate in the pro- ceedings in any way despite being duly served the Statement of Claim. It indeed seems unlikely that the Defendant will take any active part in the UPC proceedings, so the UPC would likely in any case need to render a decision solely based on the evidence and arguments submitted by the Plaintiff. The Defendant’s conduct justi- fies the granting of a decision by default. Need for a timely decision The Plaintiff respectfully requests that the decision by default be given as soon as possible, in particular due to harm caused by the continuing infringement by the Defendant and due to foreseeable delays with the enforcement of the decision. The Defendant routinely participates in tenders for which Plaintiff’s products are also offered, with products that Plaintiff reasonably suspects fall within the scope of the Plaintiff’s European Patent. Therefore, there is reason to believe that the infringe- ment by the Defendant is still ongoing,and expected to continue until an injunction is issued by the UPC. Any delay in receiving a decision will cause the harm suffered by the Plaintiff due to the infringement to compound. 43 Furthermore, enforcement of the UPC decision will incur additional delays, given that the Defendant is domiciled outside the EU in Serbia. Enforcement is also likely to require court action, given the indifference towards the rights of others shown by the Defendant and its demonstrated passivity in reacting to official proceedings. Given the above, the decision should be rendered as soon as possible. Conclusions Based on the above, there are grounds to give a decision by default against the Defendant, and no obstacles exist for giving such a decision. The UPC should therefore give such a decision as soon as possible. Yours Respectfully Berggren Oy on behalf of Vahterus Oy 4 (4) Arttu Ahava, lawyer authorised to practice before the Finnish courts Helsinki, 2 October 2024”. Conditional consent from Vahterus to dispense with the oral hearing The local division Copenhagen sent a query via e-mail dated 9 December 2024 to Vahterus regarding whether or not Vahterus would agree that the Court could make a decision without an oral hearing according to article 52 (3) UPCA. Vahterus sent via e-mail dated 11 December 2024 a conditional consent to dispense with the oral hearing. Vahterus stated the following in the e-mail: “Regarding Consent to Dispense with the Oral Hearing The Court has on 9 December 2024 asked via email the Plaintiff, Vahterus Oy, whether it agrees to dispense with the oral hearing in matter ACT 9679/2024 in accordance with Article 53(3) of the UPCA. The Plaintiff conditionally consents to dispense with the oral hearing, to the extent that the Court is ready to give a decision in this matter on 44 the basis of the Plaintiff’s request for a decision by default under Rule 355 of the RoP and granting the remedies sought in the Plaintiff’s Statement of Claim. If the Court is not ready to give a decision by default according to the claims put forth in the Plaintiff’s Statement of Claim, the Plaintiff re- spectfully asks the Court to identify potential issues regarding the Plaintiff’s claims or reasoning that may require further clarification, in- formation or evidence. Furthermore, in such a case the Plaintiff re- serves the right to participate in an oral hearing and to present further written evidence or argumentation in order to properly explain its argu- ments. This conditional reservation is justified, as given the de facto absence of a counter party, the Plaintiff might otherwise end up in a situation where the Court is not satisfied with the Plaintiff’s claims or the evi- dence or argumentation supporting these claims, but the Plaintiff is not given the opportunity to explain its reasoning or to address any poten- tial shortcomings or issues raised by the Court. An oral hearing would in such a case be necessary to properly explain the Plaintiff’s reason- ing…” REASONS FOR THE DECISION Jurisdiction and competence of the Court Euro Heat is a company based in Serbia that produces different types of plate heat exchangers. Serbia is not a member state of the Agreement on a Unified Patent Court (UPCA) nor the EU. On 19 June 2024 the local Division Copenhagen received an e-mail from attorney-at-law Vla- dimir M. Jankovic on behalf of Euro Heat with an attached counterstatement that contests the jurisdiction of the UPC. According to Rule 4 (1) and (2) of the Rules of Procedure: 1. Written pleadings and other documents shall be signed and lodged at the Registry or rele- vant sub-registry in electronic form. Parties shall make use of the official forms available online. The receipt of documents shall be confirmed by the automatic issue of an electronic receipt, which shall indicate the date and local time of receipt. 45 2. Where it is not possible to lodge a document electronically for the reason that the electronic case management system of the Court has ceased to function a party may lodge a document in hard-copy. According to article 48 UPCA and Rule 8 of the Rules of Procedure parties shall be repre- sented by lawyers authorized to practice before a court in a Contracting Member State unless otherwise provided by the rules. Euro Heat has not within one month of service of the Statement of Claim lodged a Preliminary objection in the CMS by a lawyer authorized to practice before a court in a Contracting Member State in according to Rule 19 (1) (a) and (b) of the Rules of Procedure concerning the jurisdic- tion and competence of the Court and division in accordance with Rule 4 (1) and (2) and article 48 UPCA and Rule 8 of the Rules of Procedure. According to Rule 19 (7) the defendant´s failure to lodge a Preliminary objection within the time period referred to in paragraph 1 shall be treated as a submission to the jurisdiction and competence of the Court and the competence of the division chosen by the claimant. According to Rule 361 of the Rules of Procedure the Court shall examine if it is clear that it has no jurisdiction. It is stated below why the Court has international jurisdiction in this case and the Local Division of Copenhagen has competence to hear the case. According to article 31 UPCA the international jurisdiction of the Court shall be established with Regulation (EU) No. 1215/2012. According to Regulation (EU) No. 1215/2012 article 71 (b), (1) and (2): (1) a common court shall have jurisdiction where, under this Regulation, the courts of a Mem- ber State party to the instrument establishing the common court would have jurisdiction in a matter governed by that instrument; (2) where the defendant is not domiciled in a Member State, and this Regulation does not otherwise confer jurisdiction over him, Chapter II shall apply as appropriate regardless of 46 the defendant’s domicile. Application may be made to a common court for provisional, including protective, measures even if the courts of a third State have jurisdiction as to the substance of the matter. According to Chapter II, article 7 (2), in Regulation (EU) No. 1215/2012: A person domiciled in a Member State may be sued in another Member State: … (2) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur According to article 32, (1) (a), UPCA, the Court shall have exclusive competence in respect of actions for actual or threatened infringements of patents. According to article 33, (1) (a), UPCA, actions referred to in Article 32 (1) (a) shall be brought before the local division hosted by the Contracting Member State where the actual or threat- ened infringement has occurred or may occur. The alleged infringement of the patent in suit has occurred in Denmark, where Euro Heat´s flooded evaporator with internal droplet separator (the infringing product) has been imported to. The infringing product was sold to the Danish company Toms Group A/S. According to the Statement of Claim personnel from Vahterus visited the facility of Toms Group´s facility in person on 23 January 2023 and took a picture of the product, (Plaintiff´s written evidence 9). Article 7 (2), in Regulation (EU) No. 1215/2012 can according to article 71 (b), (2) also be used where the defendant is not domiciled in a Member State, and the Regulation does not other- wise confer jurisdiction over him. The Court finds that article 7 (2), in Regulation (EU) No. 1215/2012 can be used in cases regarding injunction and penalty payments as in this case. 47 Based on the information presented and the regulation cited above the Court has international jurisdiction in this case and the Local Division of Copenhagen has competence to hear the case. Decision by default Pursuant to Article 37 (1) of the UPC Statute and Rule 355 (1) of the Rules of Procedure, the Court has the discretion to issue a decision by default against a defendant subject to four conditions. Three of them relate to the admissibility of a default decision, the fourth to its sub- stantive merits. A decision by default is admissible if: firstly, the plaintiff applies for such a decision to be issued (Article 37(1) UPC Statute, Rule 355(1) of the Rules of Procedure), secondly, the defendant has failed to perform an act incumbent upon it within the period pre- scribed by the Rules of Procedure and the Rules of Procedure authorize the issue of a decision by default in this respect Rule 355(1)(a) of the Rules of Procedure) or does not submit a written reply to a document served in the course of the proceedings (Art. 37(1) of the UPC Statute) thirdly, the time limit for replying to the claim or counterclaim has expired and it is therefore ensured that the claim or counterclaim was served in such a way that the defendant had suf- ficient time to defend himself (Rule 355(3) of the Rules of Procedure). The issuance of a decision by default is substantiated if the facts presented by the plaintiff justify the claim asserted and the procedural conduct of the defendant does not prevent the issuance of a default judgment (Rule 355 (2) of the Rules of Procedure). All of these requirements are met in the present case. The issuance of a decision by default is permissible due to the reasons below. The plaintiff has requested a decision by default in its pleading dated 2 October 2024 48 (No. App. 54167/2024). The statement of claim was served on the defendant on 28 June 2024. The defendant has not submitted a Statement of Defence within the three months period which expired 30 September 2024 according to Rule 23 and Rule 300 (g) of the Rules of Procedure. Nor has the defendant within one month of service of the Statement of Claim lodged a Preliminary objection in the CMS by a lawyer authorized to practice before a court in a Contracting Member State accord- ing to Rule 19 (1) (a) and (b) of the Rules of Procedure concerning the jurisdiction and com- petence of the Court and division in accordance with Rule 4 (1) and (2) and article 48 UPCA and Rule 8 of the Rules of Procedure. For this situation, Article 37(1) of the UPC Statutes expressly provides for the possibility of issuing a decision by default. According to the plaintiff's conclusive and undisputed factual submission, the product from Euro Heat as it is depicted in linkedin.com post from 2019, catalog from Chiliventa 2022 and the product that was shipped to Denmark includes all of the features of the Independent Claim 1 of the patent EP 2673576. It is specifically shown by the summary of the point-by-point comparison between the Infringing Product and the Independent Claim of the Patent (Plaintiff’s other document 1) and the pho- tographs of the product delivered to Toms Group. According to article 25 (a) UPCA in conjunction with article 64 (2) (a), (4) UPCA, the finding of patent infringement is justified. The plaintiff has in the Statement of Claim conclusively submitted that the European patent with unitary effect EP 2673576 has been infringed by Euro Heat. The claims asserted by the plaintiff are justified. There is no evidence of any procedural con- duct on the part of the defendant that would argue against the issuance of a decision by de- fault. 49 According to the equally conclusive submission of the plaintiff, the defendant offers the attacked embodiment within the scope of the UPCA, in particular in Denmark pursuant to article 25 (a) UPCA. Annexes 5,6,7,8 and 9 substantiate the plaintiff's factual submissions. The claims asserted by the plaintiff arise from the direct patent infringement of claim 1 of the patent in suit. Taking into account the circumstances of the case, the plaintiff also has a right to prohibit the continuation of the infringement pursuant to Art. 25 (a) UPCA in conjunction with Art. 63 (1) UPCA. The defendant shall not continue to make, offer, place on the market or import into the UPC Member States in which EP 2673576 is in force flooded evaporators with internal droplet sep- arators in the scope of protection of said European Patent. The threat of a penalty payment for the omission arises from Art. 63 (2) UPCA, Art. 82 (4) UPCA, Rule 118 (1) and Rule 354 (3) of the Rules of Procedure. The Court points out that the requested amount of EUR 50.000 is a fixed amount. In the Court´s view it should be an amount up to EUR 50.000. If it is a maximum amount it remains possible for the Court to take into account the specific circumstances of any infringe- ment according to Art. 64 (4) UPCA. The decision on costs is based on Art. 69 (1) UPCA in conjunction with Rule 118 (5) of the Rules of Procedure. The value of the action is under EUR 250.000. The enforceability of the decision by default follows from Art. 82 (1) sentence 2 UPCA, Rule 354 and Rule 355 (4) of the Rules of Procedure. 50 In the present case, the Court sees no reason to suspend enforcement pursuant to Rule 355(4)(a) of the Rules of Procedure or to make enforcement dependent on the provision of security pursuant to Rule 355(4)(b) of the Rules of Procedure. DECISION For the aforementioned reasons, the following decision is issued by default: The independent claim 1 of the European patent with unitary effect EP 2673576 has been infringed by Euro Heat doo. The court grants a permanent injunction against Euro Heat doo to make, offer, place on the market, or import into the UPC Member States in which EP 2673576 is in force flooded evapo- rators with internal droplet separators in the scope of protection of said European Patent. Non-compliance with this permanent injunction referred to above shall be subject to a recurring penalty payment payable to the court of up to EUR 50 000. The court orders under Article 69(1) UPCA Euro Heat doo to pay Vahterus Oy reasonable and proportionate legal costs and other expenses in an amount of EUR 19.575, and Vahterus Oy´s court fee of EUR 11 000, in total EUR 30.575 with interest of 7% plus the key interest rate for deposits set by the European Central Bank as of one month from the date of service of the present decision. The decision by default is enforceable. INFORMATION ON THE OBJECTION A party against whom a decision by default has been issued may file an objection to the deci- sion by default within one month of service of the decision, Rule 37 (1) sentence 2 UPC Statute and Rule 356 of the Rules of Procedure. A party may lodge an application for leave to appeal to the Court of Appeal within 15 days of service of the cost decision of the Court according to Rule 221 of the Rules of Procedure. 51 INFORMATION ON ENFORCEMENT Information on enforcement: Art. 82 UPCA, Art. 37 (2) UPC Statute, Rule 118 (8), 158 (2), Rule 354, Rule 355 (4) of the Rules of Procedure. A certified copy of the enforceable judgment is issued by the Deputy Registrar at the request of the enforcing party. Rectified according to Rule 353 of the Rules of Procedure, 19 February 2025. NAMES AND SIGNATURES Presiding judge Peter Juul Agergaard Legally qualified judge Mélanie Bessaud. Legally qualified judge Alima Zana Order details 52 Order no. ORD 1148/2025 in action number: ACT 9679/2024 UPC number: UPC CFI 80/2024 Action type: Infringement Action

Key Holdings

  • The UPC affirmed its international jurisdiction over a defendant domiciled in Serbia (a non-UPCA/EU member state) based on Article 31 UPCA and Article 71b(1)(2) of Brussels Regulation (EU No. 1215/2012), specifically Article 7(2) for tort, delict or quasi-delict where the harmful event occurred (Denmark).
  • The defendant's failure to lodge a preliminary objection in the CMS by a duly authorized lawyer within the prescribed time (Rule 19(1)(a) and (b) RoP) was treated as a submission to the Court's jurisdiction and competence.
  • A decision by default was issued against Euro Heat doo as the defendant failed to submit a timely Statement of Defence and a proper preliminary objection, fulfilling the conditions under Article 37(1) UPC Statute and Rule 355 RoP.
  • The independent claim 1 of European patent EP 2673576 was found to be infringed by Euro Heat doo through making, offering, placing on the market, and importing flooded evaporators with internal droplet separators into UPC Member States.
  • A permanent injunction was granted against Euro Heat doo, prohibiting further infringement, with non-compliance subject to a recurring penalty payment of up to EUR 50,000, and Euro Heat doo was ordered to pay Vahterus Oy legal costs and expenses totaling EUR 30,575, plus interest.

Tags

  • Default Judgment
  • Infringement
  • Injunction
  • Jurisdiction
  • Penalty Payment
  • Unified Patent Court

Related Rules

Related Cases