Intended use or new manufacture under Article 29 UPCA – The limits of exhaustion according to UPC
Published on 25th February 2026
In its judgment of December 10, 2025, the Local Division Dusseldorf (UPC (LD Dusseldorf), December 10, 2025 – UPC CFI 316/2024, UPC CFI 547/2024) ruled on the distinction between permissible intended use and impermissible new manufacture.
Prior to this, the Local Division in Munich (UPC (LD Munich), August 22, 2025 – UPC CFI 248/2024) had already commented on this issue for the first time in connection with Art. 29 UPCA.
This question of distinction under patent law is of significant importance in practice for the assessment of repair, replacement, and remanufacturing cases. A patent infringement will usually be constituted if the question is answered in favour of new manufacture.
Dr. Stephan Reisner analysed the ruling of the LD Dusseldorf (and, in connection with this, the ruling of the LD Munich) in more detail in the legal journal GRUR Patent and concluded that the new case law of the UPC on this issue of exhaustion (Art. 29 UPCA) is very closely aligned with the German case law of the Federal Court of Justice (BGH). It is still unclear whether the UPC will also require an assessment based on the opinion of the relevant public (Verkehrsauffassung) to precede the technical assessment based on the patent specification, as established by the Federal Court of Justice in Germany. Stephan hopes that the opinion of the relevant public will not be a relevant factor in the case law of the UPC. For further details, please refer to the comment on the judgement (Reisner, GRUR Patent 2026, 103).
