Higher Regional Court of Düsseldorf confirms: Prokurists can also be liable for patent infringement
In its judgment of 9 October 2025 (case no. 2 U 63/24), the Higher Regional Court (OLG) of Düsseldorf upheld the decision of the lower court and confirmed that, in individual cases, a company’s Prokurist (holder of a commercial power of attorney) can also be sued for patent infringement – for injunctive relief, rendering of information and accounts, and damages.
The claimant is the proprietor of a European patent relating to a cassette for dispensing bags from a tubular film, which is used, inter alia, in nappy bins also marketed by the claimant. The first defendant is a small Polish company that sells refill film for nappy bins, including in Germany. The second defendant is the sole Prokuristin and co-shareholder of the first defendant and previously served as its managing director. On the trading platform at issue, she is listed as the company representative. In the Polish commercial register, her private e-mail address is given as the contact address for the company.
The claimant had issued a cease-and-desist letter alleging patent infringement and requested a cease-and-desist declaration with a contractual penalty undertaking from both defendants. The second defendant responded to this warning letter from her private e-mail address, denying patent infringement. She further stated that she was no longer the managing director and referred to the official e-mail address of the company.
By judgment of 9 July 2024 (case no. 4c O 12/23), the Regional Court (LG) of Düsseldorf found both the first and the second defendant liable for indirect patent infringement and ordered them to cease and desist, render information and accounts, and pay damages. The second defendant appealed to the Higher Regional Court of Düsseldorf, arguing that responsibility for complying with patent law lay exclusively with the management. She was not a “senior employee” but, according to her employment contract, responsible for mail handling and accounting.
However, this was not relevant from the perspective of the Higher Regional Court. In individual cases, employees in management positions would also be fully liable for patent infringements, regardless of their (formal) position within the organization. The court stressed that the labour-law definition of “senior employees” is not determinative. For liability as perpetrator or co-perpetrator of a patent infringement, the key question is whether the infringement results from a decision controlled by the manager within their area of responsibility – as opposed to the actions of an auxiliary person without any own control over the infringement.
The removal of the second defendant from her position as managing director was therefore not sufficient to exclude liability. From the court’s perspective, the second defendant is not a mere employee in a subordinate role but (co-)responsible for the infringing offer in a managerial capacity. In its overall assessment, the Court took particular account of the fact that the second defendant holds 49% of the shares in the first defendant and is its sole Prokuristin. In addition, her private e-mail address is listed as the contact address for the company in the Polish commercial register. She also substantively responded to the warning letter from this private e-mail address, expressly denying patent infringement. In doing so, she created the impression that she was responsible for the offer. The reference to her removal as managing director and to the official e-mail address of the company did not change this assessment.
The decision of the Higher Regional Court makes clear that, in patent matters, liability may extend beyond the company and its management level to other senior staff, such as Prokuristen. It is not decisive how the scope of the person’s duties is described in the employment contract. Patent law applies its own liability standards and focuses on the actual decision-making power in relation to the infringing offer.
In potential patent infringement scenarios, it is therefore essential to carefully assess who can be targeted in a warning letter and, subsequently, in court proceedings. This can be particularly relevant in relation to possible claims for damages, for example where there is uncertainty about the company’s solvency.
