UPC confirms jurisdiction over foreign manufacturers and their European distributors

Background

Abbott Diabetes Care (Abbott) is the patent-holder of EP 4 344 633 relating to sensor assembly technology for Continuous Glucose Monitors (CGMs). The EPO granted the patent on June 4, 2025 and gave it unitary effect on June 18 2025. Abbott filed for a preliminary injunction against Chinese CGM manufacturer, Sinocare, and its European distributor, Menarini in July 2025. On October 17, 2025, the UPC Hague Local Division granted a preliminary injunction and other provisional measures (disclosure of information, delivery of co-branded CGMs owned or held in UPC territories, subject to non-compliance penalty) and made an interim award of costs against Sinocare and Menarini. Sinocare and Menarini appealed the order of the UPC Hague Local Division (Case 1).

In a separate procedure, Abbott sued Sinocare and Menarini for infringement of EP 3 988 471 regarding a glucose monitoring system and a method for glucose monitoring involving a smartphone app. A key feature of the patent was the display of a timeline graph showing both glucose levels over time and data events icons The unitary effect of the patent was granted on July 31, 2023. On October 22, 2025, the Hague UPC Local Division dismissed the claim for provisional measures, considering that the patent was likely not infringed because the event data icons in the alleged infringement were shown on a separate panel, below the timeline graph. Abbott appealed the order (Case 2). 

Court of Appeal Decisions

Case 1: Jurisdiction

The Court of Appeal rejected Menarini’s challenge to its jurisdiction and competence based on the UPC Rule of Procedure (RoP) 19.7 and Article 26.1 of the Brussels Ibis Regulation (Brussels Ibis): because Menarini did not challenge the UPC’s competence and jurisdiction at first instance, it lost this opportunity on appeal. In any event, Menarini offered the products on its website, accessible in UPC territories where the patent is validated, so there was a likelihood of damage within the UPC, and this provided jurisdiction and competence pursuant to Art 71b(1) in conjunction with Art 7(2) Brussels Ibis and Art 33(1)(a) UPCA.  

The Court of Appeal confirmed its jurisdiction over Sinocare, which manufactures the disputed CGMs in Asia, based on Article 71b(2) in conjunction with Article 7.2 Brussels Ibis. In confirming its international jurisdiction, the Court of Appeal considered the following:

• Sinocare concluded a strategic partnership with Menarini to distribute products in Europe, including UPC territories, as evidenced by a press release. 
• As part of the strategic partnership, products were co-branded to include a Sinocare brand. 
• Sinocare was indicated as the copyright owner on the user guide and was responsible for the products’ CE certification and the affixing of the CE marking.
• Beyond manufacturing and preparing the products for sale on the European market, Sinocare actively participated in the promotion of the products in Europe.

Hence, even without a presence in Europe, Sinocare’s activities demonstrated that consumers could acquire the products within the UPC and there was a (threat of a) likelihood of damage being caused in UPC territories, even if the acts causing the damage were performed by Sinocare outside of the UPC.   

Case 2: Inventive step

The Court of Appeal applied the EPO Comvik approach: it did not exclude a non-technical feature i.e. a feature, which on its own would be considered a non-invention, from the assessment of inventive step. Such a feature may still contribute to the technical character of the invention as a whole by its interaction with other claim features. The Court of Appeal assessed the patent claim as a whole, examining how the combination of technical and allegedly non-technical elements contributed towards a technical effect. Here, the claim related to a glucose monitoring display screen combining several features: a timeline graph screen displaying glucose levels over time, data events icons under the timeline and a softkey label on the home screen. Some features in isolation could be considered non-technical, but the interface allowed users to access additional information by pressing a button or tapping on an events data icon. The Court of Appeal considered that the displayed information resulting from user interaction and technical means contributed to the technical character of the claimed invention.

Infringement

In both cases, considering the patent more likely than not to be valid, the Court of Appeal held both Appellants liable for infringement:

• Menarini, as it had offered the products in Europe on its website, promoted them at exhibitions in UPC territories and distributed them in UPC Contracting States,
• Sinocare, as it was actively involved in the marketing of the products in Europe, including UPC territories, as an instigator, accomplice or accessory of Menarini, as per its previous Philips/Belkin decision (see our previous article for further details on this). The Court of Appeal also considered Sinocare’s strategic partnership with Menarini to sell the products it had manufactured and prepared for the European market. 

One striking difference between the cases was the type of infringement: In Case 1, as the patent relates to a sensor assembly kit, both Sinocare and Menarini were considered to be direct infringers. In Case 2, the challenged features of the claims related to display panels in an app that was offered by Sinocare in Europe on the Apple and Google stores. The Court of Appeal considered that the app constituted essential means for the implementation of the patented glucose monitoring system. Hence, it held both Sinocare (offering the app) and Menarini (offering and supplying products intended for use with the app) liable for indirect infringement.

The UPC Court of Appeal reversed the findings of the Hague Local Division in Case 2, interpreting the patent differently. The events data icons and glucose levels did not have to be displayed in the same display panel or section of the timeline graph screen: a correlation could be made between the event data and the timeline because the events data icons were positioned below the timeline x-axis.

Urgency

In Case 1 the Court of Appeal noted that Abbott had started and finished the sample analysis one day before the patent grant and filed for provisional measures one month thereafter. 

In Case 2, the Court of Appeal assessed urgency from the date when the user guide became available on the websites and the product was launched in Europe, which was also the date of the decision of the opposition division (April 24, 2025). This was despite the product launch being announced earlier, in December 2024. Abbott purchased the products, once available in Europe, had them tested and analysed, and then obtained information in June on Menarini’s and Sinocare’s preparations to enter the Italian tender and reimbursement market. The Court of Appeal stressed the importance of holding all information necessary to justify the preliminary injunction and considered that Abbott did not act negligently by taking two months to collect it. Hence, although a delay of eight weeks is relatively long, Abbott had not unreasonably delayed its application. The fact that Menarini and Sinocare had commercialised a previous product that they asserted was the same as the disputed CGM, was irrelevant, because no technical detail on the disputed CGM was available and it was presented as a new product. 

Necessity of provisional measures and the balance of interests

The Court of Appeal considered that Abbott had an urgent interest in obtaining an injunction prohibiting the co-branded CGMs because:  

• Abbott and Sinocare are direct competitors;
• Abbott has been active in the CGM market since 2007 and has a strong CGM market position of around 80% in Europe;
• Sinocare is the largest Asian CGM manufacturer; 
• the Appellants’ co-branded CGMs target both the cash pay and reimbursement market and Abbott would suffer harm in both; and 
• the Appellants’ co-branded CGMs were launched on the cash pay market at a similar price to Abbott’s Freestyle Libre, with promotions and discounts that could undercut Abbott’s market price and erode its market share. Price cutting would lead to a negative price spiral, which is difficult to reverse.

The Court of Appeal therefore agreed with Abbott’s claim that it was likely to suffer damage due to the Appellants’ continued sale of co-branded CGMs on the cash pay market. There would also be a risk of extension to the (larger) reimbursement segment and price recovery in that sector would be more difficult than in the cash pay market. The harm would also be greater if Menarini entered the reimbursement market pending main proceedings, as an injunction would also harm doctors and patients. Menarini’s and Sinocare’s damages would be easier to quantify than Abbott’s damages for price erosion. Accordingly, the Court of Appeal confirmed the preliminary injunction in Case 1 and granted a preliminary injunction in Case 2 (except for Romania as unitary effect was registered before it joined the UPC), both subject to penalty payments.

Key takeaways

Prepare preliminary injunction applications before patent grant or as soon as details of the infringing products are available: Conducting sample analysis once the product is available and preparing the application for provisional measures before the patent grant favour applicants. However, urgency is assessed from the date when the applicant has sufficient information to identify the infringement. In this case, this was when the products were launched in Europe, as opposed to any earlier announcement of the launch. 

No establishment in the UPC territory is required for UPC jurisdiction - UPC-targeted activities suffice: A lack of establishment of the defendant in the UPC territories does not exempt a company from liability for infringements in UPC territory. Manufacturing outside of the UPC but promoting products in Europe and having an established distributor in Europe may suffice to raise a company’s liability as an instigator, accomplice or accessory to a UPC infringement. The European distributor may also be liable for infringement in the UPC territory.