This contribution examines the UPC Court of Appeal’s decision of 3 October 2025 (UPC_CoA_534/2024, UPC_CoA_19/2025 and UPC_CoA_683/2024) in Belkin v Philips, which addresses the personal scope of patent infringement under the Agreement on a Unified Patent Court (UPCA). The judgment clarifies under which conditions parties who do not themselves perform the acts reserved to the patent holder under Articles 25–26 UPCA — including parent companies and directors — may nonetheless be held liable for patent infringement committed by others.
Case background
In this case, Philips had brought infringement proceedings before the UPC Munich Local Division against several entities and individuals within the Belkin group, including three individuals serving as (managing) directors. The alleged infringement related to Belkin’s wireless chargers which Philips contended embodied all features of one of the claims of its European patent. Philips sought injunctive relief across various UPC member states, as well as recall, damages, and information.
The UPC Munich Local Division upheld the action against the defendant companies and additionally ordered the defendant managing directors to refrain from exercising their functions in a way that enabled the infringing activities to continue.
On appeal, the UPC Court of Appeal upheld the infringement finding against the defendant companies, but overturned the order against the defendant managing directors on the specific facts of the case. It nonetheless laid down detailed principles on when such individuals – and by extension other third parties – may be held liable.
Extending patent infringement liability beyond the direct actor
The central legal question in the case was whether, and under what conditions, a person who does not personally perform the acts reserved to the patent holder under Article 25 UPCA or Article 26 UPCA (e.g., in relation to products, the acts of making, offering, placing on the market or using them) can nonetheless be found liable as an “infringer” within the meaning of Article 63 UPCA.
The Court of Appeal resolved this question through an autonomous interpretation of the UPCA. It held that the term “infringer” in Article 63 UPCA is not limited to those who personally carry out the acts enumerated in Articles 25 and 26 UPCA. It extends to anyone to whom the infringing acts are attributable because he / she is an instigator (e.g. having commissioned the infringing acts), an accomplice (e.g. having cooperated with the direct infringer pursuant to a common plan), or an accessory (e.g. having supported the infringing acts with knowledge of their unlawfulness). This interpretation, the Court noted, is supported by the wording of Article 63(1) UPCA, which does not expressly confine liability to those who personally use the patented invention.
This approach differs from that taken in a number of national jurisdictions. Under many national patent laws, the notion of patent infringement is essentially tied to the performance of the specific acts listed in the relevant statutory provisions (i.e. the equivalents of Articles 25–26 UPCA), so that parties who are operationally or commercially responsible for the infringement but do not personally commit those acts can only be pursued — if at all — through separate tort law constructions. A typical example is a person who puts a marketing authorization in his or her name at the disposal of a third party, knowing that this will be used to bring an infringing product to market: that person may incur tortious liability under general civil law principles by being found to facilitate the infringement by the third party. The UPC itself acknowledged that accessory-type liability is recognized in “many” contracting member states and that, had the legislator wanted to waive such liability, a clarification would have been given.
The Court expressly emphasized, however, that the question of third party liability should not fall to be determined under national law by reference to Article 24(1) UPCA. It held that the UPCA, through Articles 25, Article 63, and Article 64 UPCA, constitutes a self-contained body of unified substantive civil law, leaving no unintended gap that would need to be filled by national law. The Court found additional support for this approach in Article 32 UPCA, which limits the UPC’s jurisdiction to matters of patent law, so that it does not have competence to adjudicate general tort law claims in the way that national courts may do under their domestic laws. Without a broad, autonomous interpretation of “infringer,” the UPC considered that it would otherwise lack the tools to reach those who are operationally responsible for infringement but did not personally commit the infringing acts — a result that would undermine effective enforcement.
As regards managing directors specifically, the Court firstly emphasized that they are not a “third party” in relation to the company they manage and therefore cannot be treated as an intermediary under Article 63(1). Furthermore, the Court clarified that the mere fact of holding a managing director position obviously does not make an individual a co-perpetrator or accomplice. Personal liability as an infringer requires conduct going beyond the (managing) director’s ordinary professional duties. According to the Court, this may arise, in particular, where: (i) they deliberately use the company as a vehicle for patent infringement; or (ii) they know that the company is committing infringement and fail to take action to stop it, even though it would be possible and reasonable to do so. Crucially, the requisite knowledge is not merely awareness of the factual circumstances; the managing director must also be aware that those circumstances constitute an unlawful act. According to the Court, a managing director who seeks and obtains legal advice to the effect that no infringement exists is entitled, in principle, to rely on that advice until a first-instance court has found infringement — at which point the position changes fundamentally.
In the present case, the Court found that the defendant managing directors lacked the requisite awareness of unlawfulness. They had sought legal advice, and the infringement of the specific claim feature in issue had been disputed and excluded in earlier (national) proceedings. Under those circumstances, they were entitled to rely on those assessments.
Practical implications
This decision carries several important practical messages:
- Most fundamentally, parties operating in patent-intensive industries should not assume that liability can be avoided simply by instructing or commissioning third parties to manufacture, offer, sell, or distribute potentially infringing products. Under the UPCA, those who commission or facilitate such acts — including parent companies, group entities exercising operational control, and individuals who deliberately direct infringing activities — may be found to be infringers in their own right, on a par with the direct actor. This also means that claimants before the UPC may increasingly consider bringing actions not only against operating entities but also against entities or individuals exercising operational control over the infringing activity.
- The threshold for such liability (which is always fact-specific) has been set sufficiently high to avoid abuse (e.g. to avoid that from now on every patent infringement claim before the UPC will involve the alleged infringer’s directors). For an individual director to be held personally liable, something more than the mere exercise of ordinary managerial duties is required. The conduct must cross a threshold: either a deliberate use of the company as a vehicle for infringement, or knowing and unjustified inaction in the face of identified infringement. In addition, the knowledge element has a dual character — the director must know both the factual circumstances and that those circumstances are unlawful. Obtaining and acting on competent legal advice provides a real, if not indefinite, safe harbor.
- While the decision arises specifically in the context of managing directors, the underlying principles — particularly the autonomous interpretation of “infringer” to encompass instigators, joint tortfeasors, and accessories — are formulated in general terms and are not inherently confined to directors. They are capable of extending to other categories of third party who commission, co-orchestrate, or knowingly support infringing activities. Whether and how this broader principle will be applied in future cases to, for example, shareholders exercising operational control, group holding companies, or commercial intermediaries directing infringing supply chains remains to be seen, but the foundation has been clearly laid.
- The decision raises the broader question of whether this expansive interpretation of infringement liability at the UPC level will influence the practices of national courts in member states that did not previously adopt this approach. As said, the UPC’s willingness to extend the notion of “infringer” was in part driven by a structural necessity specific to the UPC — i.e. that its competence is limited to patent law matters and does not encompass general tort law claims. National courts, by contrast, already have those tort law tools available to them under their domestic laws. It is therefore an open question whether national courts will feel compelled to align with the UPC’s approach to patent infringement proper, or whether they will continue to address the same problem through existing tort law constructions.
