UPC_CFI_9/2024_July31 – Texport v Sioen

Expert Commentary

Infringement Facts 1 June 2023: warning letter from Texport to Sioen. September 2023: Sioen files in a Belgian national court a request for a declaration of non-infringement for all the countries for which the patent was granted. January 2024: Texport starts infringement proceedings with the Nordic-Baltic Division. February 2024: Sioen started in Belgium a revocation action. 29 October 2024: The JR dealt with the preliminary objections and refused to decline jurisdiction as Texport is not a party in the proceedings in Belgium. Texport is the exclusive licensee of the patentee. The Court 1. For acts in Portugal committed before the entry of the UPC, Portuguese law is applicable. 2. Texport is an exclusive licensee and is entitled to sue for infringement. 3. Claim construction: the Court refers to the Court of Appeal in Harvard v Nanostring (UPC_CoA_335/2023). 4. The Court follows the claim construction of Texport and finds infringement. 5. Taking part in a public tender in Portugal is an infringement in Portugal. The Court grants the request for a permanent injunction and further measures. Comment 1. The Belgian filings were evidently of no assistance to Sioen. 2. The Court also concluded, and rightly so, that the claim interpretation of Sioen had no merit. 3. Sioen filed no counterclaim for invalidity. 4. Should the representatives not have advised Sioen not to spend their money on useless national actions and defending a lost case? 5. Contrary to the way some of the German courts formulate orders, the Nordic-Baltic Division formulates the order in such a way that you do not have to go through complicated exercises before the defendant is actually forced to comply with the orders. All representatives should read the orders and formulate orders accordingly in their Statement of Claim.

Full Decision Text

1 Nordic-Baltic Regional Division UPC_CFI_9/2024 Decision of the Court of First Instance of the Unified Patent Court Nordic-Baltic Regional Division concerning European Patent 2 186 428 B2 delivered on 31 July 2025 CLAIMANT TEXPORT Handelsgesellschaft mbH, Franz Sauer Straße 30 - 5020 - Salzburg - AT Represented by Thomas Adocker & Laura Coucke (Taylor Wessing) and Michael Babeluk & Martin Babeluk (Babeluk Patentanwälte) DEFENDANT Sioen NV, Fabriekstraat 23 - 8850 - Ardooie - BE Represented by Véronique Pede & Antonin Lambrecht (CAPE IP Law) and Michaël Moreels (Gevers) PATENT AT ISSUE EP 2 186 428 B2 DIVISION Nordic-Baltic Regional Division COMPOSITION OF THE PANEL Presiding judge and judge-rapporteur Stefan Johansson Legally qualified judge Kai Härmand Legally qualified judge Alima Zana Technically qualified judge Marie-Paule Vandeberg ORD_68987/2024 ACT_953/2024 2 LANGUAGE OF THE PROCEEDINGS English SUBJECT-MATTER Infringement action ORAL HEARING 11 February 2025 3 Table of Contents 1. SUMMARY OF FACTS ................................................................................................... 4 1.1 Introduction ........................................................................................................ 4 1.2 The patent in suit ................................................................................................. 5 1.3 The attacked embodiments .................................................................................. 8 1.3.1 “868 – Twin/AS” ........................................................................................... 8 1.3.2 “NOMEX SIOEN modelo RSB LX” / “234 – Nomex Twin” ................................. 9 2. SUMMARY OF PARTIES’ REQUESTS ........................................................................... 10 3. GROUNDS FOR THE DECISION................................................................................... 15 3.1 Applicable substantive law ................................................................................. 15 3.2 Legal standing and/or interest ........................................................................... 21 3.3 The Patent and claim construction...................................................................... 22 3.4 Infringement ...................................................................................................... 33 3.4.1 The attacked embodiments ........................................................................ 33 3.4.2 Infringing acts............................................................................................. 35 3.5 Introduction ...................................................................................................... 36 3.5.1 Declaration of infringement ........................................................................ 36 3.5.2 Injunction ................................................................................................... 36 3.5.3 Damages ..................................................................................................... 38 3.5.4 Interim award of damages........................................................................... 39 3.5.5 Communication of information.................................................................... 40 3.5.6 Publication ................................................................................................. 42 3.5.7 Corrective measures ................................................................................... 43 3.5.8 Penalty payments ....................................................................................... 46 3.5.9 Legal costs and other expenses.................................................................... 47 3.5.10 Enforceability ............................................................................................. 48 4. DECISION .............................................................................................................. 49 4 1. SUMMARY OF FACTS 1.1 Introduction 1. This case concerns alleged infringement of EP 2 186 428 B2 (hereafter referred to as EP 428, the patent in suit or the Patent), which relates to a "Tissue construction for protective clothing". The Patent is in force as a European patent in many states, including Belgium, Portugal and Latvia. The Patent is not subject to an opt out from the competence of the Unified Patent Court (UPC). 2. The proprietor of the Patent is Mr He is the managing director/CEO of Texport Handelsgesellschaft mbH (TEXPORT), which is an Austrian company that manufacture firefighting and work safety clothing. Mr also owns 26 % of Texport Holding GmbH, which is the company that owns 100 % of TEXPORT. 3. On 1 June 2023, Mr representative, who is also one of the representatives of TEXPORT in this case, sent a warning letter to Sioen NV (SIOEN), alleging that SIOEN’s product "868 – Twin" delivered in Latvia infringed the Patent. SIOEN is a Belgian company that manufactures and distributes inter alia fire-fighting clothing. 4. After some correspondence between Mr and SIOEN, through their representatives, SIOEN filed (in September 2023) an action for a declaration of non- infringement of the Patent against Mr at the Nederlandstalige Ondernemingsrechtbank Brussel (hereafter referred to as the Belgian national Court). SIOEN requested this national Court to declare inter alia that SIOEN did not infringe the Patent in any State where the Patent was validated, at least not the Belgian and the Latvian part of the Patent, by the manufacture, offering, placing on the market, stocking, importing, exporting or using in any other manner its product currently known as “868 – Twin”. 5. In January 2024, TEXPORT initiated infringement proceedings against SIOEN at the Nordic-Baltic Regional Division of the UPC. In these proceedings, TEXPORT alleges inter alia that TEXPORT is the exclusive licensee of the Patent and that SIOEN is infringing the Patent in at least Latvia by manufacturing, offering and placing on the 5 market, importing, storing, supplying or offering to supply or using the product "868 – Twin/AS" in at least Latvia, and that SIOEN is infringing the Patent – or at least aids and abets such infringements – in at least Portugal, by offering and offering to supply the product “NOMEX SIOEN modelo RSB LX” in at least Portugal. 6. In February 2024, SIOEN initiated a revocation action against the Belgian part of the Patent at the Belgian national Court. SIOEN also submitted a Preliminary objection at the Nordic-Baltic Division of the UPC, arguing – with reference to the case in Belgium – inter alia that the Court should declare itself without jurisdiction, stay the proceedings until the Belgian national Court establishes its jurisdiction and then declare itself without jurisdiction, or at least declare itself without jurisdiction and competence for Latvia and/or Belgium, or declare TEXPORT’s claim inadmissible due to lack of legal standing. 7. On 29 October 2024, the judge-rapporteur issued an order dismissing the Preliminary objection, inter alia based on that the case in Belgium did not involve the same parties (the patent proprietor is not a party in these proceedings and TEXPORT is not a party in the proceedings in Belgium), and referred the question of TEXPORT’s legal standing to the main proceeding. 8. For further details, reference is made to the grounds for the decision and to the parties' written pleadings. 1.2 The patent in suit 9. EP 428 has the title “Tissue design for protective clothing” and was granted in German. It has an effective filing date of 11 Nov 2009, claiming priority of AT Application No. 17612008 dated 13 November 2008 as well as AT Application No. 6772009 dated 4 May 2009. The grant of the Patent was published on 8 May 2013 with the following two independent claims. English translation of claim 1 (from B1 publication) separated into features: 1. A fabric structure (100, 100’, 100") for protective clothing for emergency forces, comprising 1.1 an outer fabric (2), 1.2 a lining material (3), and 6 1.3 a moisture barrier (4) arranged between outer fabric (2) and the lining material (3), 1.3.1 wherein the moisture barrier (4) has a climate membrane (40), 1.3.2 which is laminated onto a carrier material (3, 41), 1.4 and between outer fabric (2) and moisture barrier (4) an additional layer (5) 1.4.1 having a substantially latticed structure is arranged characterised in that 1.4.2 the additional layer (5) is a knitted material. English translation of claim 10: 10. A use of a fabric structure (100, 100’, 100") according to one of claims 1 to 9 for producing protective clothing for emergency forces, in particular firefighting jackets and trousers. The description included inter alia the following figure: 10. On 31 January 2014, SIOEN initiated opposition proceedings at the European Patent office (EPO) against the grant of the Patent and argued inter alia that the Patent was invalid due to lack of novelty, lack of inventive step and insufficient disclosure. 11. During the opposition proceedings at the EPO, the patent proprietor amended claim 1 by adding that the knitted additional layer between the outer fabric and the moisture barrier consists of a waffle structure (see below). The Opposition Division found that the patent was valid in this amended form and SIOEN did not appeal the decision to the EPO Boards of Appeal. The patent with the amended claims was published on 17 January 2018 as EP 2 186 428 B2. 12. The Patent is, according to a datasheet that has been submitted by TEXPORT, in force as a European patent in many states, including Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, 7 Netherlands, Portugal, Slovenia and Sweden. The Patent has not been opted out from the jurisdiction of the UPC. 13. The description (English translation from Espacenet) includes inter alia the following: [0002] Multi-layered garments with an outer fabric, a moisture barrier and a lining fabric are often worn in industry and by emergency services such as the military, police or fire brigade. Often, these garments must be heat resistant, flame resistant and tear resistant, must not allow water such as extinguishing water or rain to pass therethrough, but must release moisture resulting from sweating to the outside of the body of the wearer. [0003] Usually, the outer fabric is made of a heat-resistant and flame-resistant material, while the moisture barrier is arranged between the outer fabric and the lining fabric and has a two-layer structure. In this case, a climate membrane is applied to a carrier which, on the one hand, keeps moisture penetrating from the outside, such as rain or extinguishing water, away from the skin of the carrier and, on the other hand, transports moisture which forms on the skin to the outer surface of the item of clothing. For this purpose, the air-conditioning membrane of the moisture barrier is arranged towards the outer material, while the carrier material of the moisture barrier is arranged towards the lining material. The lining fabric is optionally stitched with an additional fleece. [0008] Although novel tissue designs improve breathability to about 20 m2Pa/W, they do not significantly improve the values for the heat transitions Xf and Xr. [0017] It is therefore an object of the invention to provide a material which provides increased breathability with greater protection against burn injury and which not only meets the requirements of the Performance Level 2 of the above-mentioned standards, but has improved values over the materials which have become known and at the same time a lower specific weight. [0018] This object is achieved according to the invention by a fabric structure of the type mentioned at the beginning in that the additional layer is a knitted fabric, wherein the knitted fabric has a waffle structure. 14. The B2 Patent as maintained after opposition has two independent claims (claim 1 and claim 10). The English translation of claim 1 – separated into features – reads as follows: 8 1. A fabric structure (100, 100’, 100") for protective clothing for emergency forces, comprising 1.1 an outer fabric (2), 1.2 a lining material (3), and 1.3 a moisture barrier (4) arranged between outer fabric (2) and lining material (3), 1.3.1 wherein the moisture barrier (4) has a climate membrane (40), 1.3.2 which is laminated onto a carrier material (3, 41), 1.4 and between outer fabric (2) and moisture barrier (4) an additional layer (5) 1.4.1 having a substantially latticed structure is arranged characterised in that 1.4.2 the additional layer (5) is a knitted material 1.4.3 wherein the knitted material consists of a waffle structure. 15. The Patent was granted in German and the German version of feature 1.4.3 in claim 1 reads “das Gestrick eine Waffelstruktur aufweist”, while the French translation reads “l’élément tricoté comportant une structure gauffrée”. 16. The English translation of independent claim 10 reads as follows: 10. A use of a fabric structure (100, 100’, 100") according to one of claims 1 to 9 for producing protective clothing for emergency forces, in particular firefighting jackets and trousers . 1.3 The attacked embodiments 1.3.1 “868 – Twin/AS” 17. The product “868 – Twin/AS”, also referred to as “868 – Twin”, is a firefighter suit (jackets and trousers) that contains a fabric structure named “868 – Twin”. 9 It has four layers of fabric, including an outer fabric (“Twin”), a lining material (“Techwave”) and between them a moisture barrier (“SIO A.I.R. PTFE”) that has a climate membrane (PTFE) which is laminated onto a carrier material (aramid). There is also an additional layer (“Mesh”) between the outer fabric and the moisture barrier in a knitted material. The parties have different opinions on whether this knitted material (a fabric called “Samuele 3”) has/consists of (“aufweist”) a waffle structure. 1.3.2 “NOMEX SIOEN modelo RSB LX” / “234 – Nomex Twin” 18. The product “NOMEX SIOEN modelo RSB LX” is a firefighter suit (jackets and trousers) that contains a fabric structure named “234 Nomex® Twin”. It has three layers of fabric, including an outer fabric (“Nomex® Twin colour yellow”), a thermal lining (“100 % aramide”) and a moisture barrier (“Sioliner 3D-PTFE”). However, the moisture barrier “Sioliner 3D-PTFE“ consists of a lining material called “Europrotect 78720” and a climate membrane made out of e-PTFE laminate. Thus, “Sioliner 3D- PTFE“ constitutes a lining material (fire and heat resistance protective fabric) with a laminated breathable but waterproof moisture barrier (based on ePTFE) that is constituted by the climate membrane. The lining material thus acts as a carrier material for the climate membrane and the moisture barrier is on the side facing the outer fabric. This means that the thermal lining, which is a knitted fabric, is and arranged between the outer fabric and the moisture barrier. The parties have 10 different opinions on whether the knitted fabric (a fabric called “Samuele 3”) has/consists of (“aufweist”) a waffle structure”. 2. SUMMARY OF PARTIES’ REQUESTS 19. TEXPORT requests that the Court, for the Contracting Member States: (a) declares that the Defendant infringes at least claim 1 and claim 10 of the Patent, in particular by manufacturing, offering and placing on the market, importing, storing, supplying or offering to supply products comprising a fabric structure for protective clothing for emergency forces, comprising an outer fabric, a lining material, and a moisture barrier arranged between outer fabric and lining material, wherein the moisture barrier has a climate membrane, which is laminated onto a carrier material, and an additional layer having a substantially latticed structure which is arranged between outer fabric and moisture barrier, characterised in that the additional layer is a knitted material, wherein the knitted material consists of a waffle structure, and of using fabric structures with these characteristics to produce protective clothing for emergency forces, in particular firefighting jackets and trousers; (b) declares that Defendant´s products as defined above under (a), in particular its products under the name “868 Twin/AS” and “NOMEX SIOEN modelo RSB LX”, 11 are considered "goods suspected of infringing an intellectual property right" within the meaning of Article 2(7)(a) of Regulation (EU) No 608/2013; (c) grants a permanent injunction for direct infringement of at least claim 1 and 10 of the Patent by prohibiting the Defendant from infringing the Patent in any way, with immediate effect after service of the judgment to be rendered in this matter, in particular by manufacturing, offering and placing on the market, importing, storing, supplying or offering to supply products comprising a fabric structure for protective clothing for emergency forces, comprising an outer fabric, a lining material, and a moisture barrier arranged between outer fabric and lining material, wherein the moisture barrier has a climate membrane, which is laminated onto a carrier material, and an additional layer having a substantially latticed structure which is arranged between outer fabric and moisture barrier, characterised in that the additional layer is a knitted material, wherein the knitted material consists of a waffle structure, and of using fabric structures with these characteristics to produce protective clothing for emergency forces, in particular firefighting jackets and trousers; (d) declares that the Defendant is liable for the damages suffered by Texport as of 8 May 2013 (date of grant of the Patent), or at another date to be determined by this Court, as well as any future damage TEXPORT will incur as a result of the continuous infringement of the Patent; (e) orders the Defendant to pay damages or compensation to TEXPORT in the amount to be determined in separate proceedings for the award of damages; (f) orders the Defendant to pay interim damages of EUR 50,000, or at least in the amount that is sufficient to cover the expected costs of the procedure for the award of damages and compensation in paragraph (e) above; (g) orders the Defendant to provide counsel for TEXPORT within four weeks after service of the judgment to be rendered in this matter with a written statement, substantiated with appropriate documentation, drawn up and signed by an 12 independent auditor, or any other professional that this Court deems suitable for providing such statement, comprising: (i) the origin and distribution channels of the products as defined under 1. (a) above including the full names and addresses of the legal entities that are involved in the manufacture of and trade in these systems; (ii) the total number of the products as defined under 1. (a) above that the Defendant and/or any of its affiliates still have in stock either administratively or physically in the Contracting Member States as of the date of judgment; (iii) the total number of the products as defined under 1. (a) above that the Defendant, including any of its affiliates, have traded, sold, supplied, transferred and/or delivered to its customers and / or distributors in the Contracting Member States as of 8 May 2013 (date of grant of the Patent), or another date to be determined by this Court, as well as any and all copies of invoices pertaining to those acts which also shows the price obtained for these products; (iv) the identity including the full names and address of any non-consumer third person involved in the Contracting States in the production, distribution, trade and/or sale of the products as defined under 1. (a) above or in the use of such products as of 8 May 2013 (date of grant of the Patent) or another date to be determined by this Court; (v) the internal cost calculated or the purchasing costs paid, as well as the sales prices charged for the products as defined under 1. (a) above in the Contracting Member States by the Defendants, including their affiliates, as of 8 May 2013 (date of grant of the Patent), or another date to be determined by this Court; 13 (vi) the total amount of gross and net profit which the Defendant, including its affiliates, have gained as a result of trading the products as defined under 1. (a) above in the Contracting Member States as of 8 May 2013 (date of grant of the Patent), or another date to be determined by this Court, and the calculation thereof; (h) orders the Defendant to publish a rectification on its websites, including www.sioen.com and national pages on that website and/or subdomains, as well as on its social media channels, within 24 hours after service of the judgment in this matter and for a period of three months for each of the Contracting Member States, with the header "RECTIFICATION" (in capitals), without any comments or remarks in any form whatsoever, exclusively with the following text, or a similar text to be drafted by this Court, and drafted in accordance with good printing practices, either in English or translated in the local language(s) of that Contracting Member State: "Respected client, We are ordered to inform you that the Unified Patent Court by its judgment of [date] has decided that our products [868 Twin/AS and NOMEX SIOEN modelo RSB LX] as marketed by us infringes the European patent EP 2 186 428 B2 for which TEXPORT® Handelsgesellschaft mbH holds an exclusive license. We are prohibited from manufacturing, offering and placing on the market, importing, storing, supplying or offering to supply or using this product. Sincerely, [name of the responsible defendant and name and signature of a legal representative of this defendant and/or other Defendant´s affiliate companies]" (i) orders the Defendant, at its expense, to recall and/or otherwise definitely remove from the channels of commerce in the Contracting Member States all products as defined under 1. (a) above by sending registered letters to all of its (non-consumer) customers in the Contracting Member States, within fourteen days after service of the judgment to be rendered in this matter, containing exclusively the following text, or a similar text to be drafted by this Court, 14 without captions or notes, either in English or translated in the local language(s) of that Contracting Member State: "Dear Sir, Madam, We are obliged to inform you that the Unified Patent Court has decided through a judgment of [date] that our products [868 Twin/AS and NOMEX SIOEN modelo RSB LX] as marketed by us infringes the European patent EP 2 186 428 B2 for which TEXPORT® Handelsgesellschaft mbH holds an exclusive license. We are prohibited from manufacturing, offering and placing on the market, importing, storing, supplying or offering to supply or using this product. Through this letter we request you to immediately cease offering this product (online or offline, in brochures, etc.), and to immediately return all [868 Twin/AS and NOMEX SIOEN modelo RSB LX] products in your possession to us. We will immediately reimburse the purchase price concerned and all costs made in connection with the return. Sincerely, [name of the responsible defendant and name and signature of a legal representative of this defendant and/or other Defendant´s affiliate companies]" while providing counsel for TEXPORT within 1 month after sending these letters with an overview of all clients, persons and entities that these letters have been sent to as well as an overview of all clients, persons and entities that have returned the products as defined under 1. (a) above; (j) orders the Defendant to destroy, at its own expense, any products as defined under 1. (a) above which are still in stock in the Contracting Member States, as well as all products defined under 1. (a) above returned as referred to in order (i) above and any promotional material that include products as defined under 1. (a) above, within 4 weeks after service of the judgment to be rendered in this matter, and to provide counsel for TEXPORT with proper evidence of the full and timely compliance with this order within 10 days after the destruction; (k) orders the Defendant to comply with the orders under (c) and (g) – (j), subject to a recurring penalty payment of EUR 10,000 for each violation of, or non- compliance with, the order(s), plus EUR 10,000 for each day, a part of a day counting as an entire day, that the violation or non-compliance continues, or 15 another amount as determined by this Court in the proper administration of justice; (l) appends an order for the enforcement to its decision, while declaring that the judgment is immediately enforceable. (m)orders the Defendant to bear reasonable and proportionate legal costs and other expenses incurred by TEXPORT in these proceedings and orders, insofar such costs are to be determined in separate proceedings for the determination of such costs, that the Defendant pays to TEXPORT by means of an interim award of costs an amount of EUR 50,000 within 14 days after service of the judgment in this. 20. SIOEN requests a) that TEXPORT’s infringement claim be declared inadmissible for lack of standing and/or interest, or that TEXPORT’s infringement claim is dismissed on the merits, and b) that TEXPORT is ordered to bear any and all of Defendant’s reasonable and proportionate legal costs, costs for representation, costs of experts and other expenses of the proceedings, as well as any costs of execution or enforcement. 3. GROUNDS FOR THE DECISION 3.1 Applicable substantive law 21. SIOEN argues inter alia that since the alleged infringement in Portugal (which relates to “NOMEX SIOEN modelo RSB LX” / “234 – Nomex Twin”) only took place before the entry into force of the of the Agreement on a Unified Patent Court (UPCA), Portuguese law has to be applied in respect of that alleged infringement. 16 22. On this question, the Court notes that the Court of Appeal, in a decision of 16 January 2025 (UPC_CoA_30/2024, APL_4000/2024) that focus on jurisdiction for infringements that only had taken place before the entry into force of the UPCA, argues that the UPCA could/should be applied also in such situations: 53. The Court of Appeal now turns to the legal context, including the Brussels Ia Regulation and whether European Union law on choice of law should influence the UPC’s jurisdiction. [...] Should the question of applicable law influence jurisdiction? 58. The need to ensure that only one law is applicable does not exist in the context of rules concerning which court has jurisdiction (judgment of the Court of Justice of 5 September 2019 in Case C-172/18, AMS Neve and Others, ECLI:EU:C:2019:674, at para 63). 59. It can still be of interest to see if there are apparent adverse consequences, when it comes to choice of law, which would make jurisdiction of the UPC for a case such as the present one contrary to the object and purpose of the UPCA. 60. The requirement to apply national patent law pursuant to Art. 64(3) of the European Patent Convention (EPC) has been replaced by the UPCA at least insofar as proceedings before the UPC are concerned. 61. Art. 24(1) UPCA provides that in full compliance with Article 20 (which provides that the Court shall apply Union law in its entirety and shall respect its primacy), when hearing a case brought before it under the Agreement, the Court shall base its decisions on: (a) Union law, including Regulation (EU) No 1257/2012 and Regulation (EU) No 1260/2012; (b) the Agreement; (c) the EPC; (d) other international agreements applicable to patents and binding on all the Contracting Member States; and (e) national law. 62. The UPC has its own substantive law on patent infringements. Part I, Chapter V UPCA has the heading “Sources of law and substantive law” and includes: - Art. 25 UPCA, Right to prevent the direct use of the invention, - Art. 26 UPCA, Right to prevent the indirect use of the invention, - Art. 27 UPCA, Limitations of the effects of a patent, - Art. 28 UPCA, Right based on prior use of the invention, - Art. 29 UPCA, Exhaustion of the rights conferred by a European patent, and - Art. 30 UPCA, Effects of supplementary protection certificates. 17 63. These provisions apply to European patents and European patents with unitary effect alike (Art. 2(g) UPCA). Application of the law of non-contracting States is referred to in Art. 24(2) and (3) UPCA. 64. Decisions of the Court shall cover, in the case of a European patent, the territory of those CMSs for which the European patent has effect (Art. 34 UPCA). The purpose of this provision would not be attained if decisions of the Court were the result of separate factual and legal assessments for each CMS in relation to the respective national law. This would result in separate decisions in each CMS rather than all- encompassing decisions as envisaged in Art. 34 UPCA. 65. There is good reason to revisit Art. 68 UPCA on damages here. This provision forms substantive law on the consequences of a patent infringement applicable to the UPC. Through Art. 68 UPCA, the UPC has its own damages provisions. 66. If an action is lodged with the UPC, within its jurisdiction and encompassing a damages request, there is by consequence a complete set of substantive rules applicable insofar as the European patents of the CMSs are concerned. They are subject to uniform substantive law and procedural rules. 23. After this decision by the Court of Appeal, Local Division Mannheim has expressed a slightly different opinion (see e.g. decision of 11.03.2025, UPC_CFI_159/2024, paragraphs 103 and 104), which is summarised as follows in the headnote: 3. When determining the applicable substantive law, the fundamental principles governing retroactivity being enshrined and recognised in European Law and international law have to be respected. 4. Considering these principle, with regard to the determination whether substantive law as laid down in the UPCA or substantive national laws of the UPCA member states applies to acts allegedly infringing traditional European bundle patents, the following applies: a) to acts committed after the entry into force of the UPCA, the substantive law as laid down in the UPCA applies; b) to acts committed before the entry into force of the UPCA, the substantive national laws apply; c) to ongoing acts started before the entry into force of the UPCA and continued after the entry into force on 1 June 2023, the substantive law as laid down in the UPCA applies. 5. When assessing whether infringing acts are in that sense “ongoing” and justify the application of the UPCA as a general rule, an overly formalistic approach which runs counter to the aims of the Agreement must not be applied. What is decisive is to categorize such acts not in a formalistic manner which only takes into account, if, when viewed from a pure natural perspective, such acts can be referred to as separable acts, but which looks at the scenario from a normative and therefore evaluative perspective. Before this backdrop it is justified to apply the UPCA as a harmonized set of national law of the contracting member states of the UPCA to 18 ongoing acts, if the infringer continues its infringing behaviour although he could have stopped the infringement in the light of the entry into force of the new regime on 1 June 2023. In that case, however, each party reserves the right to rely on provisions of the national laws for acts before 1 June 2023 being favourable to its position compared to the provisions of the UPCA and the RoP. The party which advances the argument based on national law has to elaborate on such rules of national law and set out with a sufficient degree of substantiation why that rule of national law supports its argument. 24. When discussing the “ongoing” infringements, Local Division Mannheim also concludes that: “[a] party which advances the argument based on national law has to elaborate on such rules of national law and set out with a sufficient degree of substantiation why that rule of national law supports its argument. It is not for the UPC to determine and analyse the legal arguments based on various national laws ex officio. It were not only unrealistic to expect that the panels of the UPC even though consisting of judges from different jurisdictions mastered the national laws of all participating member states but it also does not amount to an undue burden to have the party which is now – based on a legislative decision of the member states – allowed to advance its case or defend itself in one unified forum to elaborate on provisions of different national laws where acts of infringement occurred in various territories. The same were true, if the case had been heard by one national court having jurisdiction to adjudicate upon infringement allegations based in multiple jurisdictions. Moreover, the UPCA and the Rules of Procedure foresee in various scenarios that the party concerned will have to elaborate on national law (see e.g. Art. 32 (1) (f), 24 (2) (c) UPCA (compensation derived from the provisional protection conferred by a published European patent application), Art 28 UPCA (private prior use rights), Art. 72 UPCA (certain aspects of periods of limitation, cf. McGuire GRUR Patent 2024, 466 mn. 52). For these reasons, it is also not for the court in the first place to appoint a court expert to provide expertise on foreign law”. 25. It should also be noticed that at least Sweden, that applies a dualistic approach to treaty obligations (and therefore require national legislation for the UPCA to have a clear impact in national law), has introduced a provision in Chapter 19, Section 2, of its national Patent Act which states that when the UPC deals with cases concerning European patents with unitary effect, Articles 25-30 of the UPCA apply as Swedish law on which acts are covered by the exclusive right and on the limitations to the exclusive right (cf. in particular Article 7.3 of Regulation (EU) No 1257/2012). No such provision has been introduced in relation to traditional European (bundle) patents, and it is clear from the national preparatory works that at least the Swedish Government assumed that the UPC in such situations would apply the same (substantive) national provisions as the national Courts applied for 19 such patents (prop. 2013/14:89, page 47; cf. McGuire, Bundle patents before the UPC: Which substantive law to apply? A conflict-of-laws analysis of the EPC and the UPCA, GRUR Patent 2024, 466). 26. The determination of applicable law is, of course, of fundamental importance. However, with respect to infringements that have taken place or at least begun before the 1 June 2023, the different approaches outlined above will often lead to the same result, especially if/when the UPC – based on the extensive harmonisation – presumes that the national substantive law in question and the UPCA corresponds. Because even if the approach described by the Court of Appeal would be applied, the Court would have to refrain from applying the UPCA when such an application would not respect the fundamental principles governing retroactivity being enshrined and recognized in Union law. From a practical point of view, it seems like the main difference between these two approaches often would be that the approach applied by Local Division Mannheim would take national law into account not only when it is more favourable to the alleged infringer, but also when it is more favourable to the rightholder/licensee. 27. In this case, SIOEN has made the general comment that Portuguese substantive law should be applied in respect of the alleged infringement relating to “NOMEX SIOEN modelo RSB LX” / “234 – Nomex Twin”, but SIOEN has not specified whether or how Portuguese substantive law deviates from the UPCA in any aspect relevant for the outcome of these proceedings. Therefore, the Court can at least presume that Portuguese substantive law corresponds to the UPCA and will make its assessment based on the UPCA also in respect of these products. 28. In this context, something should also be said about damages and, in particular, applicable limitations on the right to such damages. Since Article 68 UPCA only repeat what follows from the Enforcement Directive (2004/48/EC), which all contracting member states have an obligation to comply with, the direct application of this provision should normally not cause problems in terms of retroactivity. 20 29. However, the national laws of the contracting member states contain different types of provisions that limit the possibility to receive damages for infringements that took place a long time ago. According to Chapter 15, Section 12, of the Swedish Patent Act, the right to compensation for patent infringement is barred if legal action is not initiated within five years from when the damage occurred. Similarly, Chapter 9, Section 58, of the Finnish Patent Act provides that an action for compensation for patent infringement only may include damage during the five years prior to the filing of the action, and that the right to compensation is lost if an action has not been brought within this time. In other contracting member states, the absolute limitation time is longer. In Germany, Section 141 of the German Patent Act stipulate, by reference to Section 199(3) of the German Civil Code, an absolute limitation period of ten years from the point when the claim arises. In the Netherlands, the absolute limitation period for damages arising from a patent infringement is – according to Article 3:310, paragraph 1, of the Dutch Civil Code – 20 years from the day on which the infringing act that caused the damage occurred. 30. In countries where the absolute limitation period is rather long, there is often also the requirement that the proprietor/licensee must initiate proceedings within a certain time from when he/she gains (or should have gained) knowledge about the infringement. In Germany, e.g., there is – in addition to the absolute limitation period of ten years mentioned above – an obligation to initiate proceedings within three years from the end of the year when the proprietor/licensee gained knowledge of the circumstances establishing the claim, or without gross negligence should have gained such knowledge (Section 141 of the German Patent Act , which refers to Sections 197 and 199(1) of the German Civil Code). Similarly, Article 3:310 (1) of the Dutch Civil Code provides – in addition to the absolute limitation period of 20 years – that the right to claim damages becomes time-barred/prescribed on the expiry of five years from the day following the one on which the injured person has become aware of both the inflicted damage and the identity of the person who is liable for this damage. This means that in those countries, the proprietor/licensee must initiate proceedings within a specified time (three respectively five years) from when the knowledge-requirement is fulfilled, but if he/she does so he/she can get damages for infringements that occurred a long time ago. 21 31. Article 72 UPCA stipulates, without prejudice to Article 24(2) and (3), that actions relating to all forms of financial compensation may not be brought more than five years after the date on which the applicant became aware, or had reasonable grounds to become aware, of the last fact justifying the action. This means that the UPCA contains a provision of the type just described when discussing the legislation in Germany and the Netherlands, i.e. an obligation to act when the knowledge requirement is fulfilled. However, unlike the legislation in e.g. Germany and the Netherlands, the UPCA does not explicitly combine this provision with a provision specifying an absolute limitation period. 32. It has been discussed whether Article 72 UPCA means that the UPC shall not apply an absolute limitation period at all, or if its reference to Article 24(2) and (3) UPCA means that national provisions on absolute limitation periods shall be applied. However, it appears evident that (at the very least) claims for damages that were already time-barred under national law prior to the entry into force of the UPCA cannot be revived by virtue of the UPCA and its Article 72. Such an application would not respect fundamental principles governing retroactivity that are enshrined in Union law. 33. For reasons explained below, the Court does not need to take a final position on these questions in this decision, but the Court will come back to this topic when discussing damages and communication of information. 3.2 Legal standing and/or interest 34. Article 47.2 UPCA stipulates that, unless the licensing agreement provides otherwise, the holder of an exclusive licence in respect of a patent shall be entitled to bring actions before the Court under the same circumstances as the patent proprietor, provided that the patent proprietor is given prior notice. 35. In this case, TEXPORT alleges that it is the exclusive licensee in respect of the Patent, that the licensing agreement does not prevent TEXPORT from initiating 22 infringement proceedings and that the patent proprietor, who also is the managing director/CEO of TEXPORT, has been given prior notice. 36. SIOEN disputes that TEXPORT has the necessary legal standing/interest in these proceedings and requests that the claim should be declared inadmissible. In this context, SIOEN submits inter alia 1) that no license agreement between the patent proprietor and TEXPORT has been registered in any of the 27 countries where the Patent is validated or submitted in these proceedings, 2) that TEXPORT has not shown that the patent proprietor was given prior notice (the document submitted by TEXPORT originates from the patent proprietor and not from TEXPORT), and 3) that none of the warning letters SIOEN has received mention anything about a licensee. 37. The Court notes that TEXPORT has submitted a document dated 9 January 2024, i.e. three days before its Statement of Claim was filed, where the patent proprietor – who also is managing director/CEO of TEXPORT – confirms that TEXPORT is the exclusive licensee of the Patent and that TEXPORT is entitled to bring actions before any Court, especially the UPC, under the same circumstances as him, the patent proprietor. This was also confirmed by the patent proprietor during the oral hearing. This evidence is sufficient for concluding that TEXPORT is entitled to initiate these proceedings, i.e. that the conditions in Article 47.2 UPCA are fulfilled. Hence, the action is admissible. 3.3 The Patent and claim construction 38. As confirmed by the Court of Appeal in its Order on 26 February 2024 (case UPC_CoA_335/2023), the patent claim is not only the starting point, but the decisive basis for determining the protective scope of a European patent. The interpretation of a patent claim does not depend solely on the strict, literal meaning of the wording used. Rather, the description and the drawings must always be used as explanatory aids for the interpretation of the patent claim and not only to resolve any ambiguities in the patent claim. This does not mean that the patent claim merely serves as a guideline and that its subject matter also extends to what, after examination of the description and drawings, appears to be the subject matter for which the patent proprietor seeks protection. The patent claim is to be interpreted 23 from the point of view of a person skilled in the art. In applying these principles, the aim is to combine adequate protection for the patent proprietor with sufficient legal certainty for third parties. These principles for the interpretation of a patent claim apply equally to the assessment of the infringement and the validity of a European patent. 39. EP 428 is directed to a fabric structure for protective clothing for emergency forces. Thus, the Patent is directed to a person skilled in textiles, in particular protective clothing. The Patent has two independent claims (claims 1 and 10) and eight dependent claims. 40. The English translation of claim 1 of the B2 patent– separated into features – reads as follows: 1. A fabric structure (100, 100’, 100") for protective clothing for emergency forces, comprising 1.1 an outer fabric (2), 1.2 a lining material (3), and 1.3 a moisture barrier (4) arranged between outer fabric (2) and lining material (3), 1.3.1 wherein the moisture barrier (4) has a climate membrane (40), 1.3.2 which is laminated onto a carrier material (3, 41), 1.4 and between outer fabric (2) and moisture barrier (4) an additional layer (5) 1.4.1 having a substantially latticed structure is arranged characterised in that 1.4.2 the additional layer (5) is a knitted material 1.4.3 wherein the knitted material consists of a waffle structure. The Patent was granted in German and the German version of feature 1.4.3 reads “das Gestrick eine Waffelstruktur aufweist”, while the French translation reads “l’élément tricoté comportant une structure gauffrée”. 41. The English translation of independent claim 10 reads as follows: 10. A use of a fabric structure (100, 100’, 100") according to one of claims 1 to 9 for producing protective clothing for emergency forces, in particular firefighting jackets and trousers. 24 42. When it comes to claim construction, the Parties have only expressed different opinions on the construction of the term “waffle structure”. TEXPORT 43. TEXPORT points out that claim 1 refers to a waffle structure, i.e. a fabric having a certain structure, and not to a “waffle fabric”. TEXPORT also refers to paragraph [0039] of the Patent which in the English translation provided on Espacenet reads as follows (emphasis added): [0039] The knitted fabric 5 according to the invention, in particular in combination with the arrangement of the moisture barrier 4 arranged in mirror-inverted fashion in relation to the prior art, can substantially improve the breathability of the woven structure 100, 100', 100" and its heat resistance. The knitted fabric 5 has a waffle structure achieved by using a suitable knitting technology, so that it has a large volume with a low weight. In this way, an air cushion is formed in the knitted fabric 5 itself and in the intermediate spaces between the knitted fabric 5 and the moisture barrier 4 or the outer fabric 2, which air cushion in particular allows the heat effect on the wearer of the protective clothing to decrease. Furthermore, the knitted fabric 5 protects the moisture barrier 4 lying underneath if the outer fabric 2 is torn, for example, or breaks open by flame contact. It is preferably made of a heat-resistant material and in particular also resists mechanical loads. 44. Based on this and claim 1 as a whole, TEXPORT concludes that it is clear for the person skilled in the art that the term waffle structure in the Patent relates to a certain three-dimensional structure of the fabric (a three-dimensional appearance resembling the structure of a waffle) as this structure leads to said air cushions, and that it is not restricted to a fabric having a certain pattern of loops or the like. In this context, TEXPORT also refers to written expert statements by Mr and Mr as well as statements by Mr who is the chairman of the company that is manufacturing and selling the knitted fabric in question (Samuele 3) to TEXPORT and SIOEN. 45. Mr submits, in his statement dated 9 November 2023, that fabric structures in which stitches are arranged in such a way that a square structure with a depression or cavity in the middle is created are known as waffle weaves or waffle pique. He adds inter alia that the term pique bindings describe structures that are formed three-dimensionally, preferably in waffle form, and has become established 25 for this type of textile structure. Technically, these can be produced using various textile surface formation processes (weaving, warp knitting, knitting). The decisive feature is – according to him – the three-dimensionality of the fabric, and common applications include towels, bathrobes, table and bed linen. 46. In his second statement, dated 13 June 2024, Mr adds inter alia the following. Waffle structures can be produced in different ways. They are known from all textile manufacturing processes such as weaving, warp knitting and knitting. They can also be embossed on non-wovens. As the word "structure" already indicates, this refers to a three-dimensional shape of the fabric. Waffle structures are characterized by the fact that they have a specific three-dimensional structure in which a recess is surrounded on all sides by higher threads. These recesses are arranged in a grid and are usually rectangular or square. An inverse or double-sided structure is also possible, but not essential. Binding techniques that create these structures are varied and can be achieved using different knitted bindings. The ISO standard 8388:1998 (cited below) describes examples of substances that may form waffle structures. However, the standard makes no claim to completeness of the weaves and serves more to classify structures. 47. Mr submits, in his written statement dated 13 June 2024, inter alia the following. The term "waffle structure" is made up of the words "waffle" and "structure". In a technical context, "structure" means a specific arrangement and/or assembly of parts or similar without specifying the manufacturing technology, while "waffle" refers to a waffle-like shape of the structure. Objects with a waffle structure can be found in many areas, such as omelette waffles in the food sector, rigid foam boards in the construction industry or textiles such as tea towels and bedspreads. The waffle structure is a three-dimensional structure with mostly rectangularly arranged, raised thin webs, forming recesses. If a textile is referred to as a textile fabric with a waffle structure, it is not clearly recognizable whether this structure is present on one or both sides. In order to state this explicitly, it must be referred to as a one-sided or double-sided waffle structure. 26 48. Mr submits inter alia the following in his written statements. For him, waffle structure refers not to a specific noun but a type of well-known fantasy design created by squares or rectangular sections in three dimensions. In his opinion, the fabric discussed (Samuele 3) is a double-knitted fabric with a waffle structure. SIOEN 49. SIOEN argues that the term waffle structure is unclear and that the need for legal certainty requires that the term is interpreted narrowly, to the detriment of the proprietor (or licensee). Furthermore, SIOEN submits that the term waffle structure must be more limited than the “substantially latticed structure” mentioned in feature 1.4.1 and that the characteristics and effects mentioned in paragraph [0039] of the Patent are general and – according to the original disclosure – identical for “ribbed structure”, “waffle structure” and structures with a “3D appearance”. Therefore, it is – according to SIOEN – impossible that the description, in particular its paragraph [0039], could constitute a definition of solely a “waffle structure”, especially since the two options of “ribbed structure” and “3D appearance” were explicitly not retained during the opposition proceedings. Instead, the person skilled in the art would, based on the common general knowledge, understand the term waffle structure in accordance with the handbook “Clothing Technology ....from fibre to fashion”, the handbook “Knitting Technology – A comprehensive handbook and practical guide” and/or ISO Standard 8388:1998 on knitted fabrics as described by Ms Professor and Professor in their written expert statements. 27 50. The handbook “Clothing Technology ....from fibre to fashion” includes the following: 51. The handbook “Knitted Technology – A handbook and practical guide” includes the following: 28 52. ISO Standard 8388:1998 includes the following: 53. Ms explains, in her written statement dated 30 August 2023, inter alia that that SIOEN gave her chapter 3.2.3 of the ISO standard (shown above) and asked 29 her to visualise this knitting stitch pattern. She did a visual representation of the two patterns in the ISO standard using CAD visualisation tools and based on the results she can conclude that both sides of the waffle structure in the ISO standard look the same and that the tuck loops (or tuck stitches) push the other stitches to open slightly, creating the waffle structure. 54. In her second written statement, dated in February 2024, Ms. adds inter alia that chapter 3.2.3 of the ISO standard (see above) defines waffle structure as a “weft knitted structure consisting of two layers of jersey-based fabric connected by tuck loops” and concludes that a waffle-structure knit can therefore be understood 30 as a weft-knitted structure consisting of a two-layer jersey-based fabric joined (solely connected) by tuck loops. 55. The written statement by Professor and Professor dated 29 April 2024, includes the following. 6.1 Commonly used definitions Waffle structure is a very generic term used for woven and knitted fabrics having raised threads thus forming small rectangles, causing it to resemble a waffle. Such fabrics are also called Honeycomb or Grenadine structures. This is however a vague description that might be subject to significant discussion. Indeed even in the definition lies contradiction: the shape of the open spaces is referred to as "rectangular" whereas a honeycomb has obviously hexagonal spaces. In literature, numerous papers have been published on the manufacturing, properties and applications of knitted fabrics called waffle structures. In some papers, the construction of the knitted fabric pattern is given (by means of the knitting pattern), in other ones the definition is based on the appearance. References are listed in annex 5. Knitted structures show a very complex mechanical behaviour due to the numerous internal tensions in the yarns due to yarn properties (such as twist), the knitting structure and their complex interactions. Knitted structures are usually quite open, giving space to the yarns to move and slide in a process of relaxation. As a result knitted structures with the same knitting pattern may have quite a different appearance for different yarn types. In addition the process of relaxation may continue during use (for instance washing), possibly leading to a further change of appearance. Appearance is thus an unreliable parameter and often difficult to predict. The construction of the patter however cannot change and is therefore a reliable parameter. 6.2 Definition from ISO-standard In order to create a clear and common language, national, international and European standardisation bodies elaborate documents containing terms and definitions. Such standards are to be considered as a reference. The ISO standard (ISO 8388:1998 (E/F), Knitted Fabrics: types, vocabulary) addresses terms and definitions concerning knitting and knitted fabrics. This document gives the following specifications concerning waffle structure in its section 3.2.3: "grenadine (weft-knitted) USA, waffle fabric GBR, honeycomb GBR weft-knitted structure consisting of two layers of a jersey-based fabric connected by tuck loops. Note 1: The connection between the two layers is achieved by alternately knitting on one needle bed and tucking on the other." 31 This definition is fully based on the construction of the knitted fabric, illustrated by the knitting pattern notation and natural drawing (fig. 2). In addition to the definition of a waffle structure, ISO 8388:1998 describes a definition of a weft knitted double-layer jersey-based fabric (section 3.2.1): "double-layer jersey-based fabrics (weft-knitted) generic name applied to weft-knitted fabrics that consist of two independent layers of jersey-based fabric, knitted face-to-face, and that show face stitches on the outside and reverse stitches on the inside. Note 1: To produce these fabrics, each set of needles knits independently from the other set and no intermeshing of stitches takes place between the needles of one set and the needles of the other set during loop formation." […] 6.3 Conclusion of this section The ISO 8388:1998 standard is the reference for a definition of a waffle structure, including the definition of a double layer knitted structure. It is solely based on the fabric construction, not on its appearance. According to the definition of the ISO 8388:1998 standard, sections 3.2.3 and 3.1.2, a knitted waffle structure should have the following features: 1. Weft-knitted 2. Consists of two layers of jersey based fabric, whereby layers are independent, knitted face-to-face and show face stiches on the outside and reverse stitches on the inside 3. The layers are connected by tuck loops THE COURT 56. According to claim 1, the knitted material shall have a specific structure, namely a substantially latticed waffle structure. According to paragraph [0039] of the description, the fabric shall be made by a suitable – not specified – knitting technology that forms an air cushion in the knitted fabric itself and in the intermediate spaces between the knitted fabric and the moisture barrier or the outer fabric, which air cushion in particular allows the heat effect on the wearer of the protective clothing to decrease. The Patent does not contain any indication that 32 it would be limited to knitted fabrics where the waffle structure is created by a specific knitting technology, or that there has to be air cushions on both sides of the knitted fabric. Nor does SIOEN’s submissions concerning the proceedings at the opposition division justify such an interpretation. 57. The excerpts from the handbook “Clothing Technology ....from fibre to fashion” that have been submitted relates to woven fabrics and not knitted fabrics. Pictures 7 and 8 relates to woven fabrics with a honeycomb pattern. For such fabrics/patterns, it is mentioned that both sides of the fabric look the same and that this sometimes is called waffle or waffle piqué. These excerpts from the handbook cannot serve as basis for concluding that the person skilled in the art would understand EP 428 as requiring that the knitted fabric mentioned therein have to look the same on both sides, or that the knitted fabric mentioned in the Patent has to be created by a specific knitting technology. Instead, the excerpts only confirms that a waffle structure is a three-dimensional structure with recesses/hollows between walls/ridges, thereby giving a cellular/latticed/grid-like appearance. 58. The ISO standard describes a weft-knitted waffle fabric by reference to two knitting techniques. According to Professor and Professor the standard requires 1) that the fabric is weft-knitted, 2) that it consists of two layers of jersey based fabric, whereby layers are independent, knitted face-to-face and show face stiches on the outside and reverse stitches on the inside, and 3) that the layers are connected by tuck loops. This is in line with the observations made by Ms However, Professor and Professor does not only discuss the interpretation of the ISO standard. They also confirm that the term waffle structure as such is a very generic term used for woven and knitted fabrics having raised threads thus forming small rectangles, causing it to resemble a waffle. In addition, they recognise that this is a vague description that might be subject to significant discussion and point out that in literature, numerous papers have been published on fabrics called waffle structures and that these structures sometimes are defined by the knitting pattern and sometimes based on the appearance. 59. Based on this, the Court finds that there is no basis at all for concluding that the person skilled in the art would interpret the term waffle structure in the Patent as being limited to knitted fabrics that that have been created by the specific knitting 33 technology mentioned in the ISO standard. This conclusion is supported by the written statements of Mr Mr and Mr 60. The Court finally notes that the submitted excerpts from the handbook “Knitted Technology – A handbook and practical guide” relates to warp knitting machines and that the description/definition thus is incompatible with the definitions in the other documents. The Court finds no basis for concluding that the person skilled in the art would interpret the feature waffle structure in the Patent in accordance with any limitations provided in this handbook. 61. Accordingly, the Court concludes that the term waffle structure in claim 1 shall not be understood as limiting the scope of the Patent to fabric structures that comprise a knitted fabric that looks the same on both sides, or where the waffle structure is created by a specific knitting technology. Instead, the feature waffle structure means that the knitted fabric shall have a three-dimensional structure with recesses/hollows between walls/ridges, thereby giving a cellular/latticed/grid-like appearance on at least one side. 3.4 Infringement 3.4.1 The attacked embodiments 62. Based on its claim interpretation, SIOEN disputes that the attacked embodiments infringe the Patent because they do not have a knitted fabric that consists of a waffle structure. TEXPORT argues, on the other hand, that the attacked embodiments also have this feature. 63. The Court has already, in its claim construction, concluded that the term waffle structure in claim 1 does not mean that the Patent is limited to fabric structures that comprise a knitted fabric that looks the same on both sides, or where the waffle structure is created by a specific knitting technology. Instead, the feature waffle structure means that the knitted fabric shall have a three-dimensional structure with recesses/hollows between walls/ridges, thereby giving a cellular/latticed/grid-like appearance on at least one side. 34 64. The parties agrees that the knitted fabric in the attacked embodiments is Samuele 3, which is a fabric that is manufactured and sold to both parties by the Italian company Maglificio Alto Milanese SRL. SIOEN’s expert witnesses have not commented on whether this fabric has a waffle structure in the meaning just described, but TEXPORT’s experts and Mr who is the chairman of said Italian company, argue that this is the case. 65. The parties have submitted pictures of the knitted fabric in dispute and samples been presented for the Court during the oral hearing. The submitted pictures include the following: (TEXPORT’s Exhibit A4, picture from SIOEN’s website) (Extracts from TEXPORT’s Exhibits A8 and A9) 35 66. Based on the pictures and the samples presented during the oral hearing, the Court concludes that the knitted fabric in the attacked embodiments has/consists of a waffle structure in the meaning of the Patent. 67. SIOEN has not contested that the other features of claim 1 are infringed. Hence, there is literal infringement of EP 428 in respect of both attacked embodiments. 3.4.2 Infringing acts 68. TEXPORT alleges that SIOEN is infringing the Patent in at least Latvia by manufacturing, offering and placing on the market, importing, storing, supplying or offering to supply or using the product "868 – Twin/AS" in at least Latvia, and that SIOEN is infringing the Patent – or at least aids and abets such infringements – in at least Portugal, by offering and offering to supply the product “NOMEX SIOEN modelo RSB LX” in at least Portugal. 69. SIOEN has not disputed the alleged infringing acts that relates to “868 Twin/AS”. However, SIOEN has disputed the alleged infringing acts that relates to “NOMEX SIOEN modelo RSB LX” and argues inter alia as follows. It is true that SIOEN, via its local distributor in Portugal, participated in a public tender from the City of Lisbon, but it was not successful (it was not granted to SIOEN or its local distributor, but to another company). This means that SIOEN did not sell any “234 – Nomex Twin- products” following the public tender in Portugal. Participation in a very limited tender (only one buyer) does not constitute an infringing offer when the offer is not accepted. Furthermore, SIOEN is based in Belgium and any offer by SIOEN is therefore done in Belgium. 70. It is, in the Court’s view, obvious that the participation in a public tender in Portugal constitutes a patent infringement (offering) in (at least) Portugal, even though SIOEN is based in Belgium and despite that the offer was not accepted. It is also obvious that the offer in question originated from SIOEN, or at least was submitted by the local distributor only after SIOEN had agreed to manufacture and deliver the 36 products in question if the tender was won. Hence, SIOEN has also infringed the patent in this regard. 3.5 Introduction 3.5.1 Declaration of infringement 71. According to Article 64.2(a) UPCA, the Court may issue a declaration of infringement. This may include a declaration that the use of certain products (e.g. fabrics) constitutes an infringement, but it may also include a declaration that such products are "goods suspected of infringing an intellectual property right" within the meaning of Article 2(7)(a) of Regulation (EU) No 608/2013, if this is requested. 72. TEXPORT is entitled to such declarations in this case. Hence, TEXPORT’s request for these declarations shall be granted. 3.5.2 Injunction 73. Where a decision is taken finding an infringement of a patent, the Court may, according to Article 63 UPCA, grant an injunction against the infringer aimed at prohibiting the continuation of the infringement. 74. TEXPORT has requested that the Court grants, for the contracting member states, a permanent injunction for direct infringement of at least claim 1 and 10 of the Patent by prohibiting the Defendant from infringing the Patent in any way, with immediate effect after service of the judgment to be rendered in this matter, in particular by manufacturing, offering and placing on the market, importing, storing, supplying or offering to supply products comprising a fabric structure for protective clothing for emergency forces, comprising an outer fabric, a lining material, and a moisture barrier arranged between outer fabric and lining material, wherein the moisture barrier has a climate membrane, which is laminated onto a carrier material, and an additional layer having a substantially latticed structure which is arranged between outer fabric and moisture barrier, characterised in that the additional layer is a knitted material, wherein the knitted material consists of a waffle structure, and of using fabric structures with these characteristics to produce 37 protective clothing for emergency forces, in particular firefighting jackets and trousers. 75. This request was submitted before Romania ratified the UPCA and TEXPORT has not made an application to amend the claim to cover also Romania. Furthermore, TEXPORT has submitted an extract from the EP register regarding the legal status of the Patent, which shows that the Patent is in force in all Contracting Member States except Malta. This means that Romania and Malta needs to be excluded from any injunction. 76. SIOEN has disputed the request for an injunction and argued inter alia as follows. An injunction would not be proportionate or motivated. Firefighter suits are goods on which the public has become dependent and TEXPORT has only put forward substantiation of infringing acts in Latvia. In such a situation, reasonableness commands that no remedies can be granted in the countries for which TEXPORT does not give any substantiation to its claim. Furthermore, Article 34 UPCA prevents carve-outs of contracting member states and since the ongoing proceeding in Belgium, between SIOEN and the patent proprietor, prevents the UPC from issuing an injunction covering Belgium, no injunction is possible. On the other hand, if the UPC were to decide that a carve-out is possible, it takes a country-by-country approach and would at least have to limit the injunction only to cover Latvia (or Portugal if this claim is with object), since TEXPORT’s claim does not offer any basis for a wider order. 77. This Court has already concluded that the ongoing proceedings in Belgium does not involve the same parties in the meaning of the Brussels I recast Regulation, see ORD_16070/2024 on App_10381/2024, issued 29 October 2024. Hence, the ongoing proceedings in Belgium does not prevent this Court from issuing an injunction based on the request from TEXPORT also covering Belgium. 78. Since Article 63(1) UPCA explicitly states that the Court “may” issue an injunction, the Court has a possibility to refrain from issuing an injunction in certain situations. This means that the Court is expected to consider counterarguments presented by the Defendants, which may include arguments based on proportionality. At the same time, it is clear that the main function of a patent is to give the proprietor a 38 right to prevent others from using the invention during the term of protection, see e.g. Article 25(a) UPCA. Hence, when the Court finds that a patent has been infringed, a request for an injunction should normally be granted. 79. The fact that the public needs firefighter suits do obviously not lead to the conclusion that SIOEN should be allowed to continue infringing the Patent, especially since it is possible to get access to firefighter suits without buying infringing products from SIOEN. Hence, an injunction shall be granted. 80. The injunction shall be formulated in the way specified in the operative part of this decision and it shall, in accordance with Article 34 UPCA, cover all contracting member states except Romania and Malta, for reasons explained above. 3.5.3 Damages 81. According to Article 68 UPCA, the Court shall, at the request of the injured party, order the infringer who knowingly, or with reasonable grounds to know, engaged in a patent infringing activity, to pay the injured party damages appropriate to the harm actually suffered by that party as a result of the infringement. The amount of the damages or the compensation may, according to Rule 118 RoP, be stated in the order or determined in separate proceedings [Rules 125-144]. 82. SIOEN was fully aware of the existence of the Patent and has acted culpably. TEXPORT is therefore – as an exclusive licensee – entitled to damages appropriate to the harm it actually has suffered as a result of the infringement. It is, contrary to what SIOEN has submitted, also in this context irrelevant that TEXPORT is not registered as an exclusive licensee in the national patent registers. 83. TEXPORT has requested that the Court at this stage only take a decision on the liability in principle, i.e. that the determination of the amount of any damages shall be dealt with in a separate proceeding. However, TEXPORT has also requested that the liability for damages shall cover all damages caused since 8 May 2013, when the Patent was granted, including damages for infringing acts taking place after the 39 statement of claim was filed but before a final decision is issued (TEXPORT has described this as “future damages” in its request). 84. SIOEN has disputed that TEXPORT has suffered any damage and submitted comments on how any potential damages should be calculated. SIOEN has also – with reference to Article 72 UPCA – argued that any liability to pay damages must be limited to damages caused since 12 January 2019, i.e. during the last five years before these proceedings were initiated. 85. The Court finds that the request to only decide on damages in principle shall be granted. Thus, the amount of the damages shall be determined in the subsequent proceedings under Rule 125 et seq. RoP. In this situation, also the time periods to be taken into account shall be determined in the subsequent proceedings. The relevant time periods and the potential application of national legislation that may affect the right to damages will depend on information referred to in Article 67 UPCA, which only will be made available to the claimant after the decision on the merits. Hence, the declaration of right to damages shall not specify the time periods to be taken into account (cf. e.g. Local Division Mannheim, decision of 11.03.2025, UPC_CFI_159/2024, paragraphs 103, 104 and 115–118). 3.5.4 Interim award of damages 86. According to Rule 119 RoP, the Court may order an interim award of damages to the successful party in the decision on the merits, subject to any conditions that the Court may order. Such award shall at least cover the expected costs of the procedure for the award of damages and compensation on the part of the successful party. 87. TEXPORT has requested that SIOEN is ordered to pay TEXPORT an interim award of damages in the amount of EUR 50 000, to cover part of the expected costs of the procedure for the award of damages and compensation. 88. SIOEN disputes the request and argues that it is not justified and that the amount is excessive. 89. The Court finds that TEXPORT is entiteled to an interim award of damages and that the requested sum is reasonable, given the circumstances of the case and the 40 estimated costs for a separate proceeding on the amount of damages. Hence, the request shall be granted. 3.5.5 Communication of information 90. According to Article 67 UPCA and Rule 191 RoP, the Court may order an infringer to inform the applicant of: a) the origin and distribution channels of the infringing products or processes, b) the quantities produced, manufactured, delivered, received or ordered, as well as the price obtained for the infringing products, c) the identity of any third person involved in the production or distribution of the infringing products or in the use of the infringing process, and d) such other information as is reasonably necessary for the purpose of advancing that party’s case. 91. This means inter alia that the claimant also has a right to information needed to verify the information and to calculate the damage (see e.g. Local Division Mannheim, decision of 11.03.2025, UPC_CFI_159/2024, paragraph 103). 92. In this case, TEXPORT has in summary, for the contracting member states, requested the Court to order SIOEN to provide, within four weeks after service of the decision on the merits, a written statement, drawn up and signed by an independent auditor, comprising detailed information on the products origin and distribution channels (including the names and addresses of the legal entities that are involved in the manufacture of and trade of the products, the number of products in stock, the number of the products that have been traded, sold, supplied, transferred and/or delivered since the Patent was granted, the identity of any non- consumer third persons that have been involved in the production, distribution, trade and/or sale of the products, or in the use of such products, the internal cost calculated or the purchasing costs paid, as well as the sales prices charged for the products, the total amount of gross and net profit as a result of trading the products and the calculation thereof. In addition, TEXPORT has requested that the written statement by the independen auditor shall be substantiated with appropriate 41 documentation, including any and all copies of invoices pertaining to products that have been traded, sold, supplied, transferred and/or delivered which also shows the price obtained for these products. 93. SIOEN has disputed the request and argues inter alia that it is neither justified or proportionate, that is goes beyond what the UPC may order and that TEXPORT in fact is conducting a fishing expedition to reveal trade secrets and highly confidential information of SIOEN – being a competitor – to gain extra market share by potentially abusing this information. 94. Based on the fact that the products in question have been found to infringe the Patent, the Court finds that TEXPORT is entitled to receive information about other actors in the distribution chain that may be held liable for infringing the Patent as well as information that allows the claimant to calculate the damages more precisely. This means that TEXPORT should, in principle, get access to most of the information that have been requested. 95. As previously pointed out by Local Division Mannheim (decision of 11.03.2025, UPC_CFI_159/2024, paragraph 103), it is only after the information has been rendered that the claimant will know whether and to what extent national rules may play a role and may limit or extend claimant’s claims compared to the rules enshrined in the UPCA and the RoP and are worth being litigated on. Consequently, it is not for the operative part of the decision on the merits according to Rule 118 RoP to limit the extent of information time-wise up-front. 96. However, as the request is drafted, there is an overlap between some requests for information, which inter alia could make it unnecessary burdensome for SIOEN to comply with the order. TEXPORT has e.g. not explained why it, in addition to the names and addresses to legal entities involved in the manufacture of and trade in these systems since 8 May 2013, also would need the names and address of any non-consumer third person involved in the manufacture of and trade during the same period. Nor has TEXPORT explained why the written statement, in addition to being drawn up and signed by an independent auditor, should be substantiated with appropriate documentation, or why also all copies of invoices pertaining to 42 products that have been traded, sold, supplied, transferred and/or delivered needs to be included. 97. For these reasons, the Court finds that it justified and proportionate to order SIOEN to communicate information in accordance with what is stipulated in the operative part of this decision. 3.5.6 Publication 98. According to Article 80 UPCA, the Court may order appropriate measures for the dissemination of information concerning the Court's decision, including displaying the decision and publishing it in full or in part in public media. 99. TEXPORT has requested that the Court orders SIOEN to publish a rectification on its websites, including www.sioen.com and national pages on that website and/or subdomains, as well as on its social media channels, within 24 hours after service of the decision in this matter and for a period of three months for each of the Contracting Member States, with the header "RECTIFICATION" (in capitals), without any comments or remarks in any form whatsoever, exclusively with the following text, or a similar text to be drafted by this Court, and drafted in accordance with good printing practices, either in English or translated in the local language(s) of that Contracting Member State: "Respected client, We are ordered to inform you that the Unified Patent Court by its judgment of [date] has decided that our products [868 Twin/AS and NOMEX SIOEN modelo RSB LX] as marketed by us infringes the European patent EP 2 186 428 B2 for which TEXPORT® Handelsgesellschaft mbH holds an exclusive license. We are prohibited from manufacturing, offering and placing on the market, importing, storing, supplying or offering to supply or using this product. Sincerely, [name of the responsible defendant and name and signature of a legal representative of this defendant and/or other Defendant´s affiliate companies]" 100. SIOEN has disputed the request and argues inter alia that a publication measure is an exceptional measure that should only be granted in special circumstances and as a last resort e.g. in case of non-compliance with the decision or fierce commercial consequences, which is not demonstrated in the present case. 43 101. The Court finds that TEXPORT has not shown sufficient reasons for ordering the requested publication of the decision on SIOEN’s websites. Hence, the request shall be dismissed. 3.5.7 Corrective measures 102. According to Article 64 UPCA, the Court may order that appropriate corrective measures be taken with regard to products found to be infringing a patent, e.g. the recall of the products from the channels of commerce, the definitive removal of the products from the channels of commerce and the destruction of the infringing products. The Court may also order the destruction of the materials and implements concerned. The Court shall order that these measures be carried out at the expense of the infringer, unless particular reasons are invoked for not doing so. In considering a request for corrective measures, the Court shall according to Article 64.4 UPCA take into account the need for proportionality between the seriousness of the infringement and the remedies to be ordered, the willingness of the infringer to convert the materials into a non-infringing state, as well as the interests of third parties. 103. TEXPORT has requested that the Court shall order SIOEN, at its own expense, to recall and/or otherwise definitely remove from the channels of commerce in the contracting member states all infringing products by sending registered letters to all of its (non-consumer) customers in the contracting member states, within fourteen days after service of the decision to be rendered in this matter, containing exclusively the following text, or a similar text to be drafted by this Court, without captions or notes, either in English or translated in the local language(s) of that Contracting Member State: "Dear Sir, Madam, We are obliged to inform you that the Unified Patent Court has decided through a judgment of [date] that our products [868 Twin/AS and NOMEX SIOEN modelo RSB LX] as marketed by us infringes the European patent EP 2 186 428 B2 for which TEXPORT® Handelsgesellschaft mbH holds an exclusive license. We are prohibited from manufacturing, offering and placing on the market, importing, storing, supplying or offering to supply or using this product. Through this letter we request you to immediately cease offering this product (online or offline, in brochures, etc.), and to immediately return all [868 Twin/AS and NOMEX SIOEN modelo RSB LX] 44 products in your possession to us. We will immediately reimburse the purchase price concerned and all costs made in connection with the return. Sincerely, [name of the responsible defendant and name and signature of a legal representative of this defendant and/or other Defendant´s affiliate companies]" while providing counsel for TEXPORT within 1 month after sending these letters with an overview of all clients, persons and entities that these letters have been sent to as well as an overview of all clients, persons and entities that have returned the infringing products. 104. TEXPORT has also requested that the Court shall order SIOEN to destroy, at its own expense, any infringing products which are still in stock in the Contracting Member States, as well as all infringing products returned due to the recall mentioned above, and any promotional material that include the infringing products, within four weeks after service of the decision in this matter, and to provide counsel for TEXPORT with proper evidence of the full and timely compliance with this order within ten days after the destruction. 105. TEXPORT has confirmed that these requests do not include suits already in possession of the firefighters in question, i.e. the end-users. 106. SIOEN has disputed the requests and argues inter alia that they are disproportionate and that the Court, according to Article 64 UPCA, must take into account the willingness to convert the materials into a non-infringing state as well as the public’s need for these products. SIOEN also argues that the draft letter is disproportionate. 107. The Court finds that a request for recall and destruction normally shall be granted, in order to effectively avoid further acts of infringement. It is for the infringer to present facts and proof of any circumstances, e.g. based on proportionality, justifying that the Court dismiss the request or concludes that it is sufficient to amend the infringing goods (cf. e.g. Local Division Mannheim, 11.03.2023, UPC_CFI_159/2024, paragraph 125). 108. In this case, SIOEN has argued that the requested measures are disproportionate and primarily referred to the public’s need for these products, which clearly is an 45 irrelevant argument since the public have other alternatives than buying infringing products. SIOEN has also, in a sentence, referred to the part of Article 64 UPC where it is mentioned that the Court shall consider the willingness to convert the materials into a non-infringing state but not elaborated on the possible advantages of amending the products instead of destroying them, or even explained how this could/would be done. For these reasons, the Court concludes that there are sufficient reasons for ordering the recall and destruction of the infringing products. There are also sufficient reasons for ordering the destruction of any promotional material that includes the infringing products. 109. In its request, TEXPORT also mentions removal from the channels of commerce. However, since this is an alternative to recall, and more burdensome for the infringer, the Court sees no reason to consider this alternative. The Court notes, however, that TEXPORT has not even argued or explained how SIOEN would be able to comply with such an order, which is a fundamental condition for issuing such an order. 110. As already mentioned, TEXPORT has also requested that SIOEN shall be ordered to send a specific letter to all of its (non-consumer) customers in the contracting member states, to provide TEXPORT with an overview of all clients, persons and entities that these letters have been sent to as well as an overview of all clients, persons and entities that have returned the infringing products. TEXPORT has also requested that SIOEN shall be ordered to provide TEXPORT with proper evidence of the full and timely compliance with the order on destruction. SIOEN has disputed these requests and argue inter alia that they are disproportionate. 111. The Court notes that in some cases it might be necessary to order the use of a specific text for the recall of infringing products, but TEXPORT has not convinced the Court it is necessary in this case. Thus, it is sufficient that SIOEN is ordered to recall the infringing products, which have been put on the market, from the channels of commerce, with reference to the infringement determined by a court of law (Nordic-Baltic Regional Division of the Unified Patent Court, decision on 31 46 July 2025), and with the binding commitment to take back the products and to bear any costs. 112. It is in SIOEN’s interest to convince TEXPORT that it has complied with these obligations, in order to avoid unnecessary enforcement proceedings. Hence, there are not sufficient reasons to order SIOEN to provide TEXPORT with an overview of all recipients of the recall letters, or of the recipients that have returned the infringing products. Nor is it necessary to order SIOEN to provide TEXPORT with evidence of the full and timely compliance with the order on destruction. 113. SIOEN has not disputed the time-limits that TEXPORT has suggested for complying with these orders, but the time-limits have to be set in accordance with Rule 118.8 RoP (see below on enforcement). 114. Since TEXPORT has confirmed that these requests do not include consumers or firefighters/end-users, this should be reflected in the orders. 3.5.8 Penalty payments 115. Article 63(2) UPCA states that non-compliance with the permanent injunction shall where appropriate be subject to a recurring penalty payment payable to your Court. Furthermore, Article 82.4 UPCA contains a general provision stipulating that if a party does not comply with the terms of an order of the Court, that party may be sanctioned with a recurring penalty payment payable to the Court. The individual penalty shall be proportionate to the importance of the order to be enforced and shall be without prejudice to the party's right to claim damages or security. 116. TEXPORT has requested that the Court orders SIOEN to comply with the injunction and the orders on communication on information, recall and destruction, subject to a recurring penalty payment of EUR 10 000 for each violation of, or non- compliance with, the order(s), plus EUR 10 000 for each day, a part of a day counting as an entire day, that the violation or non-compliance continues, or another amount as determined by this Court in the proper administration of justice. 47 117. SIOEN has disputed the request and argues inter alia that there is no need for making the orders subject to a penalty payment and that the suggested penalties are disproportionate, especially since the costs for one firefighting suit is – according to TEXPORT – about EUR 1 000. 118. The Court notes that the obligation to comply with these kinds of orders normally are made subject of a recurrent penalty payment and finds no reason to deviate from this standard. However, the Court agrees with SIOEN that the amounts suggested by TEXPORT are unnecessarily high. Instead, the penalty payment for non-compliance with the injunction is set to up to EUR 10 000 per violation, and the penalty payments for non-compliance with the orders on communication of information, recall and destruction are set to up to EUR 1 000 for each day of delay. 3.5.9 Legal costs and other expenses 119. According to Article 69 UPCA, reasonable and proportionate legal costs and other expenses incurred by the successful party shall, as a general rule, be borne by the unsuccessful party, unless equity requires otherwise, up to a ceiling set in accordance with the Rules of Procedure. Where a party succeeds only in part or in exceptional circumstances, the Court may order that costs be apportioned equitably or that the parties bear their own costs. A party should bear any unnecessary costs it has caused the Court or another party. 120. According to Rule 118.5 RoP, the Court shall – in the decision on the merits – decide in principle on the obligation to bear legal costs in accordance with Article 69 UPCA. This cost decision may, according to Rule 150 RoP et al., be the subject of separate proceedings following a decision on the merits and, if applicable, a decision for the determination of damages. 121. Furthermore, the Court may according to Rule 150.2 and Rule 119 RoP, order an interim award of costs to the successful party in the decision on the merits [Rule 119] or in a decision for the determination of damages 122. TEXPORT has requested that the Court orders SIOEN to bear reasonable and proportionate legal costs and other expenses incurred by TEXPORT in these proceedings, and that SIOEN shall be ordered to pay TEXPORT an interim award of 48 costs in the amount of EUR 50 000 within 14 days after service of the decision in this matter. 123. In this case, TEXPORT is the successful party and there is no reason to deviate from the general principle that the other party, i.e. SIOEN, shall be ordered to bear reasonable and proportionate legal costs and other expenses incurred by TEXPORT in these proceedings. 124. The amount requested as an interim award of costs is quite high, considering that the value of the proceeding is set to EUR 500 000, but it is well below the preliminary estimates of costs submitted by the parties before the oral hearing and the Court has no doubt that TEXPORT has incurred more costs than the amount requested. Hence, the request for the interim award of costs shall be granted. 3.5.10 Enforceability 125. TEXPORT has requested that the Court shall declare that the decision is immediately enforceable and append an order for the enforcement to its decision. 126. It follows from Article 82.1 UPCA and Rule 354.1 RoP that decisions and orders of the Court shall, subject to Rule 118.8 and 352 RoP, be directly enforceable from their date of service in each contracting member state. However, Article 82.2 UPCA and Rule 118.8 provides that the Court may make any order subject to the provision of a security for its enforceability. 127. Since SIOEN has not brought forward any facts justifying that the orders are made subject to a security, the Court sees no reason to make its orders in this case subject to the provision of a security. 128. Consequently, this decision is immediately enforceable, with the limitations that follows from Rule 118.8 RoP (cf. Court of Appeal, order of 30.05.2025, UPC_CoA_845/2024 and UPC_CoA_50/2025). This means inter alia that TEXPORT needs to notify the Court of its intention to enforce any orders in the decision, before the Court will issue an order for the enforcement. 49 4. DECISION For all these reasons and with respect to Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Netherlands, Portugal, Slovenia and Sweden: I) The Court declares that SIOEN NV is infringing claim 1 and claim 10 of EP 2 186 428 B2, in particular by manufacturing, offering and placing on the market, importing, storing, supplying or offering to supply products comprising a fabric structure for protective clothing for emergency forces, comprising an outer fabric, a lining material, and a moisture barrier arranged between outer fabric and lining material, wherein the moisture barrier has a climate membrane, which is laminated onto a carrier material, and an additional layer having a substantially latticed structure which is arranged between outer fabric and moisture barrier, characterised in that the additional layer is a knitted material, wherein the knitted material consists of a waffle structure, and of using fabric structures with these characteristics to produce protective clothing for emergency forces, in particular firefighting jackets and trousers. II) The Court declares that SIOEN NV’s products as defined above under I), in particular its products under the name “868 Twin/AS” and “NOMEX SIOEN modelo RSB LX”, are considered "goods suspected of infringing an intellectual property right" within the meaning of Article 2(7)(a) of Regulation (EU) No 608/2013. III) The Court orders SIOEN NV to cease and desist from making, offering, placing on the market or using, or importing or storing for those purposes, a fabric structure for protective clothing for emergency forces, comprising an outer fabric, a lining material, and a moisture barrier arranged between outer fabric and lining material, wherein the moisture barrier has a climate membrane, which is laminated onto a carrier material, and between outer fabric and moisture barrier an additional layer having a substantially latticed structure is arranged characterised in that the additional layer is a knitted material wherein the knitted material consists of a waffle structure, 50 and of using fabric structures with these characteristics to produce protective clothing for emergency forces, in particular firefighting jackets and trousers. IV) The Court orders SIOEN NV to comply with the order in paragraph III), subject to a recurrent penalty payment of up to EUR 10 000 for each violation of the order. V) The Court declares the SIOEN NV, due to infringing acts of EP 2 186 428 B2, is obliged to pay damages and/or compensation to TEXPORT Handelsgesellschaft mbH in the amount to be determined in separate proceedings for the award of damages. VI) The Court orders SIOEN NV to pay TEXPORT Handelsgesellschaft mbH the sum of EUR 50 000 as interim damages. VII) The Court orders SIOEN NV to provide the representative of TEXPORT Handelsgesellschaft mbH, within four weeks from service of a notification in accordance with Rule 118.8 RoP and subject to penalty payment of up to EUR 1 000 for each day of delay, with a written statement, drawn up and signed by an independent auditor, comprising: (a) the names and addresses of the legal entities involved in the production, manufacturing, distribution, trade and/or sale of the products as defined under paragraph I) above, since 8 May 2013, (b) the total number of the products as defined under paragraph I) above that SIOEN NV and/or any of its affiliates still have in stock either administratively or physically in Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Netherlands, Portugal, Slovenia and/or Sweden as of the date of this decision, 51 (c) the total number of the products as defined under paragraph I) above that SIOEN NV, including any of its affiliates, have traded, sold, supplied, transferred and/or delivered to its customers and/or distributors in Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Netherlands, Portugal, Slovenia and/or Sweden since 8 May 2013, (d) the internal cost calculated, or the purchasing costs paid, as well as the sales prices charged by SIOEN NV, including its affiliates, for the products as defined under paragraph I) above in Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Netherlands, Portugal, Slovenia and/or Sweden since 8 May 2013, (e) the total amount of gross and net profit which SIOEN NV, including its affiliates, have gained as a result of trading the products as defined under paragraph I) above in Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Netherlands, Portugal, Slovenia and/or Sweden since 8 May 2013. VIII) The Court orders SIOEN NV, at its expense, to recall the products as defined under paragraph I) from the channels of commerce in Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Netherlands, Portugal, Slovenia and Sweden, by informing its customers (excluding consumers/end-users) in those member states, within fourteen days from service of a notification in accordance with Rule 118.8 RoP and subject to penalty payment of up to EUR 1 000 for each day of delay, that a court of law (Nordic-Baltic Regional Division of the Unified Patent Court, decision on 31 July 2025) has found that the products infringe European Patent EP 2 186 428 and with the binding commitment to take back the products and to bear any costs. IX) The Court orders SIOEN NV to destroy, at its own expense, any products as defined under paragraph I) above which are still in stock in Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Netherlands, Portugal, Slovenia and Sweden, as well as all products defined under paragraph I) above that are returned due to the recall and any promotional material 52 that include products as defined under paragraph I) above, within four weeks after service of a notification in accordance with Rule 118.8 RoP and subject to penalty payment of up to EUR 1 000 for each day of delay. X) The Court declares that SIOEN NV shall bear the reasonable and proportionate legal costs and other expenses incurred by TEXPORT Handelsgesellschaft mbH in these proceedings, in accordance with Article 69 UPCA. XI) The Court orders SIOEN NV to pay TEXPORT Handelsgesellschaft mbH the sum of EUR 50 000 as an interim award of legal costs and other expenses. XII) The Court dismisses all other requests. XIII) This decision is immediately and directly enforceable from the date of service in each contracting member state, subject to the requirements that follows from Rule 118.8 RoP. Issued and read in open Court, in Stockholm, on 31 July 2025. Stefan Johansson Presiding judge and judge-rapporteur Kai Härmand Legally qualified judge Alima Zana Legally qualified judge Marie-Paule Vandeberg Technically qualified judge For the Deputy-Registrar Isabel Pais Iglesias Clerk INFORMATION ABOUT APPEAL An appeal against the present Decision may be lodged at the Court of Appeal, by any party which has been unsuccessful, in whole or in part, in its submissions, within two months of the date of its notification (Art. 73(1) UPCA, R. 220.1(a), 224.1(a) RoP).Stefan Erik Johansson Digitally signed by Stefan Erik Johansson Date: 2025.07.30 15:29:08 +02'00'Carmen Isabel Pais Iglesias Digitally signed by Carmen Isabel Pais Iglesias Date: 2025.07.30 15:34:57 +02'00' 53 INFORMATION ABOUT ENFORCEMENT Art. 82 UPCA, Art. Art. 37(2) UPCS, R. 118.8, 158.2, 354, 355.4 RoP. An authentic copy of the enforceable decision will be issued by the Deputy-Registrar upon request of the enforcing party, R. 69 RegR. ORDER DETAILS Order no. ORD_68987/2024 ACTION NUMBER: ACT_953/2024 UPC number: UPC_CFI_9/2024 Action type: Infringement Action

Key Holdings

• Infringement found; permanent injunction granted.
• Exclusive licensee has standing to sue.
• Public tender participation in Portugal deemed infringement.
• Portuguese law applied to pre-UPC acts.

Tags

• Applicable Law
• Infringement
• Licensing

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