Nieder on the Effect on Customers of a Stay of Injunctive Relief Against a Manufacturing Infringer

Michael Nieder has published an article titled Eingeschränkter Unterlassungsanspruch im europäischen Patentrecht:  Folgen auf der Abnehmerseite (“Constrained Claims for Injunctive Relief in European Patent Law:  Consequences on the Buyer Side”), 14/2023 GRUR 995-97.  Here is the abstract, in my translation from the German:

If a claim for injunctive relief is brought against the maker of manufacturing equipment or of commercially useful goods before the UPC, the question arises, how an exceptional denial of injunctive relief under article 63(1) of the UPCA affects the defendant's customers.  This essay outlines the problem for customers, but also for the manufacturer, and seeks solutions whereby the exclusion of a claim for injunctive relief against the manufacturer is not thwarted at the level of its customers.    

The article proceeds from the premise, which other commentators share, that UPC article 63(1) (“Where a decision is taken finding an infringement of a patent, the Court may grant an injunction against the infringer aimed at prohibiting the continuation of the infringement. The Court may also grant such injunction against an intermediary whose services are being used by a third party to infringe a patent”; emphasis added) permits the UPC, in exceptional cases, to deny or stay injunctive relief.  If so, it would seem to follow, logically, that when the court denies or stays an injunctive against a manufacturer, the customers of that manufacturer also should be exempt from being enjoined—and also from having to pay damages for the use of infringing products the defendant is allowed to sell off during the period of the stay.  The issue the author addresses is the legal basis for such a result. If I understand correctly, the author’s preferred solution is for the defendant to offer to pay compensation that reflects the damages or profits the customers would be obligated to pay, if they were defendants themselves, in exchange for discharging them from liability.  The author concludes, however, by posing the question of what should happen if the plaintiff rejects the offer, and (again if I'm understanding correctly) doesn't see a clear solution to this problem