The patent EP 2 546 134 B1 at issue protects a “combination structure of bicycle frame and motor hub”.

Fairly Bike Manufacturing Co. Ltd, a company based in Taiwan and MyStromer, a company based in Switzerland, are co-owners of the patent at issue.

The patent owners accuse Revolt Zycling of infringing the European patent with its “Opium” range of cranksets. The defendant had initially announced the delivery of these challenging speed pedelecs of the “Opium” series on its website for April 2023. Although delivery was delayed, the contested embodiment has been exhibited at the “EuroBike 2023” trade fair in Frankfurt. The contested embodiment was available for test rides by the visitors. In addition, an order form was available on Revolt Zycling’s website.

Soon after the trade fair opened, on June 22, 2023, MyStromer filed an ex-parte application for a preliminary injunction against Revolt Zycling with the Local Division of the Unified Patent Court (hereinafter UPC), based in Düsseldorf.

On the same day, Revolt Zycling filed a protective letter with the UPC.

However, this protective letter does not challenge the validity of the European patent, as the respondent invoked exhaustion of rights and denied any infringement.

The Local Division noticed that neither opposition has been filed against the patent at issue nor a national revocation action having been brought to date.

The Düsseldorf Local Division has issued the provisional measures, without prior hearing of the respondent, and ordered the defendant to cease and desist from offering for sale, placing on the market, importing, exporting or possessing the allegedly infringing products in Germany, the Netherlands, France and Italy. These measures are accompanied by a penalty payment for each act of infringement.

This order was served at 3:30 PM during the trade show because the products presented were included in the order.

The Local Division held that the validity of the patent at issue is secured to the extent required for the issuance of a provisional Order. Indeed, neither opposition has been filed nor national revocation action since it was granted in 2015. Furthermore, the defendant company did not challenge its validity in its protective letter.

The Local Division also held that, given the reputation of the trade fair in the entire industry, a delay in the granting of interim prohibition measures would cause irreparable damage to the claimant company resulting in a loss of sales or market share that could hardly be reversed.

The Local Division further ordered the Applicant to provide a security deposit or a bank guarantee in the amount of 500 000 euros.