Shenzhen Comen and Maucher Jenkins overturn PI at Düsseldorf Regional Court

Shenzhen Comen has successfully overturned a preliminary injunction won by competitor Shenzhen Mindray, after the former accused the latter of infringing a patent for a respiratory machine valve at a trade fair in Düsseldorf. Now the city's regional court has overturned the initial injunction and rejected the claim of infringement.

Chinese companies Shenzhen Comen Medical Instruments and Shenzhen Mindray Medical Instruments are currently fighting over a patent for a valve used in respiratory devices. In November 2022, the latter company had accused Shenzhen Comen of infringement after it exhibited its products at the Medica trade fair in Düsseldorf. This resulted in the city’s regional court handing down a preliminary injunction.

However, the PI did not cover the entire machine, only the specific valve. In May 2023, after a second round of proceedings, the court concluded that Shenzhen Comen did not infringe the patent and withdrew the injunction (case ID: 4b O 82/22).

Trouble at the trade fair

EP 3 102 271 B1concerns a device and method for a valve with low resistance, specifically for controlling the flow of at least one fluid through at least one channel. Medical professionals commonly use such respiratory apparatus in anaesthesia machines or in medical ventilators, for example to allow a patient to breath artificially if they are unable to breathe independently.

The dispute began in November 2022 at the Medica trade fair. Shenzhen Comen exhibited its Comen V3 and Comen V8 ventilators, both of which contain a removable valve used in its repiratory devices. Due to nuances in the German system, when a company rents a booth at a trade fair in Germany, it becomes an official, albeit temporary, place of business. As such, during the trade fair, Shenzhen Mindray presented Shenzhen Comen with a warning letter to cease displaying the apparently infringing valve.

When Shenzhen Comen failed to respond, on 17 November – the last day of the fair – Shenzhen Mindray presented it with a preliminary injunction, issued by Düsseldorf Regional Court against the V3 and V8 valves. The injunction prohibited Shenzhen Comen from selling the two products in Germany and also required the company to pay the costs of the infringing items.

Shenzhen Comen disputes PI

Since Shenzhen Comen is domiciled in China, with no EU premises, injunctive relief could only be enforced at the trade fair. With the contested valves exhibited for such a short time, the plaintiffs did not have to prove EP 271 in opposition or nullity proceedings at first instance.

However, on 27 April the Düsseldorf Regional Court heard an application to annul the preliminary injunction, based on what the defendant said was its failure to take into account a small step in its product relating to the valve. Based on the evidence, the court overturned its initial determination of a PI, instead annulling the application and ordering Shenzhen Mindray to bear the cost of proceedings. Parallel proceedings on the merits are also ongoing in China.