UPC – Position of the CoA regarding liability of Managing Directors

Important Decision by the Court of Appeal of the Unified Patent Court on the Liability of company managing directors for patent infringement committed by their companies:

Ruling on an appeal against a decision on the merits of the Munich Local Division of the Unified Patent Court (hereinafter, the “UPC”), which had held managing directors personally liable alongside their companies found guilty of infringement (Munich LD, 13 September 2024, Koninklijke Philips N.V. c. Belkin GmbH, UPC_CFI_390/2023, ACT_583273/2023, ORD_598464/2023), the decision of the UPC’s Court of Appeal was particularly awaited.

In the first instance, the Munich Local Division had found the managing directors liable as “intermediaries” to the infringement and had ordered injunctive relief against them.

However, after reasserting that a managing director cannot be regarded as an “intermediary’” (see, to that effect, CoA, 29 October 2024, UPC_CoA_549/2024, APL_51838/2024, App_53031/2024), the Court of Appeal confirmed that a director may nonetheless be personally recognized as an “infringer” because of infringing acts committed by the company.

The Court of Appeal clarified that the mere position of managing director does not automatically imply personal liability and that it is necessary to establish acts of infringement committed by the managing director in the capacity of an “instigator, accomplice or accessory” going beyond the general management, control and organizational duties.

In view of the provisions of certain national laws governing the regime of liability (for example, under French law, the requirement of a “fault separable from the duties” – Cass. Com., 20 May 2003, No. 99-17.092), as well as the practical difficulties in assessing infringement and patent validity, particularly in complex technological sectors, the Court of Appeal held that a managing director’s liability can only be established where acts exceeding his/her normal duties have been committed – for example, where the managing director has “deliberately” used the company to commit patent infringements.

The Court of Appeal also clarified that a managing director’s liability may arise where the managing director knows that the company is infringing a patent and – although it is possible and reasonable for him to do so – fails to take action to stop the patent infringement. Such knowledge of the infringing acts not only require that the managing director is aware of the circumstances giving rise to the patent infringement (for example, the sale of products subsequently found to be infringing), but also awareness of their illegality (infringing nature).

Hence, such knowledge (or absence thereof) could be established on the basis of legal advice – for example, through a freedom-to-operate opinion. Accordingly, the Court held that a managing director could validly demonstrate the absence of knowledge of the infringement by relying on legal advice until a decision establishing his company’s patent infringement has been issued.

However, the reasoning of the Court of Appeal may give rise to difficulties where a freedom-to-operate opinion concludes, on the contrary, that there is a certain level of risk of infringement. Nevertheless, proving such knowledge of a managing director will remain quite difficult in practice for third parties.

In the present case, the Court of Appeal overturned the Local Division’s decision on merits regarding the managing director’s liability due to insufficient evidence of effective knowledge of the infringement.

* Unified Patent Court (UPC), 03 October 2025, case UPC_CoA_534/2024, UPC_CoA_19/2025, UPC_CoA_683/2024, Koninklijke Philips N.V. v. Belkin GmbH

Gaston VEDEL, Attorney-at-law (Avocat), Partner of BDL-IP LEGAL
Sabine BORNY, Attorney-at-law (Avocate) of BDL-IP LEGAL