Polytech changes counsel after Munich setback in breast implant battle

In an entitlement action concerning a patent belonging to German breast implant manufacturer Polytech, competitor Silimed has once again prevailed. At the end of February, the Munich Regional Court ruled that all rights concerning EP 3 002 101 belong to Brazilian company Silimed (case ID: 7 O 6695/22).

The patent protects a process for manufacturing implants or intermediate products of such implants, as well as implants and intermediate products obtained by such processes. Polytech must now ensure the patent transfers to Silimed. The judgment is enforceable against a security of €750,000. However, Polytech will appeal.

Realigning case law

The judges of the 7th Civil Chamber under presiding judge Oliver Schön used the decisions to realign the court’s case law on entitlement actions. Specifically, it redefines the relationship between product manufacturers and their distributors.

In the judgment’s guiding principle, which JUVE Patent has obtained, the judges write, “There is a right to a complete transfer of a patent application or patent – and not just to the granting of co-ownership rights – if, in the context of a distribution cooperation, information about the invention on which the application is based is passed on by the inventor to their distribution partner and the latter then, contrary to express agreement or practical content of the cooperation, further develops the invention and applies for a patent”.

Silimed manufactures breast implants. The Brazilian company accuses German competitor Polytech – until 2008 their distribution partner in Germany – of using information about technology that it provided for CE mark certification when entering the European market. The certification is a prerequisite for marketing certain products in the EU and European Free Trade Association (EFTA). For years, Silimed has demanded the surrender of two patents by means of Frankfurt and Munich Regional Courts.

Frankfurt case continues

In Frankfurt, Silimed is demanding the surrender of EP 2 581 193, which protects a process for manufacturing implants. In 2011, Polytech registered the basic patent but Silimed claims to be the inventor of this technology and filed an entitlement action in 2017.

Initially, Silimed had little success with its claims in Frankfurt. The dispute went through the courts to the Federal Court of Justice, which overturned the judgment against Silimed and referred the dispute back to the Higher Regional Court Frankfurt.

Based on new documents, the Frankfurt court then ruled in December 2024 that Silimed developed the technology and awarded EP 193 to the Brazilian company (case ID: 6 U 79/19). Polytech will also have this decision reviewed by the Federal Court of Justice and has filed an appeal against the denial of leave to appeal.

The dispute between the German company and its Brazilian competitor is therefore likely to continue for years.

Polytech changes counsel

Polytech is relying on new lawyers for the final stretch in the dispute. A mixed team consisting of lawyers Jörg Wahl and Uli Foerstl and patent attorney Clemens Gillen from Munich law firm Viering Jentschura & Partner has conducted the proceedings since January. They made their first appearance alongside Polytech at the oral hearing at the Munich Regional Court in late January. Previously, Boehmert & Boehmert had represented Polytech in all German proceedings.

Silimed relies on separate teams in the Frankfurt and Munich proceedings. At the Munich Regional Court, lawyer Michael Schneider from mixed patent firm Eisenführ Speiser is leading the entitlement action. In Frankfurt the Brazilian company relied on a mixed team from Hoffmann Eitle. Attorneys from São Paulo firm RNA Law manage the cross-border litigation and instruct firms in Germany.