Opinions
UPC Court of Appeal: guidance on “offering” and directors’ liability for patent infringement.
The Unified Patent Court’s Court of Appeal has recently delivered a significant decision (Philips v. Belkin, 3 October 2025) clarifying the boundaries of “offering” in patent and the conditions for holding company directors personally liable for patent infringement.
Case overview
Koninklijke Philips NV (“Philips”) brought an action against several Belkin entities and their managing directors for infringement of a patent relating to wireless power transfer technology. The Munich Local Division had ruled in favour of Philips against the Belkin companies and, in a novel move, imposed restrictions on the directors’ management activities. Both sides appealed, raising fundamental questions on the scope of “offering” and the threshold for directors’ liability.
“Offering” – a broad, economic Interpretation
On the concept of “offering,” the Court adopted a pragmatic, economically oriented interpretation, rooted in Article 25(a) UPCA (“A patent shall confer on its proprietor the right to prevent any third party not having the proprietor’s consent from the following: (a) making, offering, placing on the market or using a product which is the subject-matter of the patent, or importing or storing the product for those purposes […]”).
The Court confirmed that “offering” is not limited to formal contractual offers, but rather encompasses any commercial presentation that can enable potential customers to initiate a transaction. Thus, advertising on national websites or even referencing third-party retailers can amount to an infringing offer, regardless of whether a price or contract terms are specified, and regardless of whether the product is available or can actually be delivered.
In other words, even a mere “invitatio ad offerendum” (an invitation to negotiate) is sufficient to fall within the prohibition of Article 25 UPCA.
Directors’ Liability – strict but not automatic
Subsequently, regarding directors’ liability, the Court made reference to Article 63 UPCA, read in conjunction with Article 25 UPCA. These provisions establish that an “infringer” is not only who directly carries out the acts listed in Article 25 UPCA. The term also encompasses individuals who are liable for the actions of others, such as those who instigate, facilitate, or participate as accomplices in the infringement.
However, liability is not automatic, and the judgment sets a high bar for holding directors personally liable.
Merely holding a management position does not suffice. Personal liability arises only where the director’s conduct goes beyond ordinary duties, such as deliberately using the company to infringe, or knowingly failing to prevent infringement when it would be reasonable to do so. Knowledge of the violation requires not only awareness of the facts, but also awareness of the unlawfulness.
What’s new? The Court’s key findings
This judgment provides welcome clarity for both patent holders and corporate leadership.
By adopting a pragmatic, economically oriented definition of “offering”, the Court reinforces the reach of patent protection. At the same time, the nuanced approach to directors’ liability reassures company management: personal liability is reserved for cases of intentional or grossly negligent conduct, not for ordinary business decisions made in good faith and with appropriate legal advice.
This newsletter is for the sole purpose of providing updates and general information and is not intended as legal advice on any particular or specific issue.
For clarifications or information, please contact the authors or your reference professional in the Intellectual Property area at our Firm.
Niccolò Ferretti, Partner
E: n.ferretti@nmlex.it
T.: +39 026575181
Emanuela Gaia Zapparoli, Counsel
E: e.zapparoli@nmlex.it
T.: +39 026575181
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