212 As Lord Sumption and Lord Briggs point out, the more recent German authorities, Östrogenblocker and Dexmedetomidin, take a broader view of the protection generated by a Swiss-form patent. They do not focus on the external presentation (including the instructions for its use) of the allegedly infringing product, but rather on its inherent suitability for the patented use. However, they underline an additional requirement of any infringement, viz that the distributor
“needs to take advantage of circumstances which - in a similar way to an active obvious preparation - ensure that the purpose-related therapeutic use of the preparation offered or sold actually takes place.”
and
“The latter requires a sufficient and not just occasional use according to the patent in suit, as well as the supplier’s respective knowledge, or at least its bad faith ignorance thereof:”
https://academic.oup.com/rpc/article/135/12/831/5540064

In a judgment of the Düsseldorf Court of Appeals dated 1 March 2018 (confirming an order of the Düsseldorf District Court dated 5 May 2017), the court increased the liability of generics companies in cases of infringement of second medical use claims. The court decided that:
taking into account the ... purpose-limited compound protection there must only be conditions fulfilled which ensure the requested purpose for the compound in another way: First, the product must be suitable for the patented purpose and, secondly, the supplier must make use of circumstances which – similar to an active purposeful arrangement by him – ensure that the purpose-limited therapeutic use will be reached by means of the offered and sold product. The latter requires an adequate not only occasional scope of use according to the patent in suit as well as a respective knowledge or at least an ignorance of knowledge in bad faith by the supplier.
https://books.google.co.uk/books?id=nx20DwAAQBAJ&pg=PT125&dq...

In this context, the court formulated the following new liability criteria
1. The product must be suitable for the patented purpose
2. The distributor must take advantage of circumstances which, in a manner similar to an active manifest arrangement, ensure that the product being offered or marketed is used for the specified therapeutic purpose. This requires a sufficient and not only occasional use, as well as the relevant knowledge or at least disregard of such knowledge by the supplier acting in bad faith.
https://academic.oup.com/jiplp/article/14/6/487/5489982?gues...