The Hague Local Division (LD Hague) of the Unified Patent Court (UPC) has granted a provisional injunction preventing a Chinese manufacturer and its EU authorised representative from infringing a patent concerning continuous glucose monitoring (CGM) systems in the UPC territory and Spain. 2.5 months was a reasonable period, following receipt of a test purchase, to complete infringement testing and file an application for provisional measures.
Background
Abbott is a global market leader in CGM technology and the owner of EP 3960072 (EP 072) concerning an integrated glucose sensor and sensor electronics assembly.
MicroTech is a Chinese manufacturer of competing CGM products known as the Vista System and DiaExpert System. The Vista System was sold through online marketplaces, including Amazon, in Germany, Italy, and Spain. Lotus is Microtech’s EU authorised representative for the Vista and DiaExpert Systems, domiciled in the Netherlands. Mediq NL and Medic DE distributed the DiaExpert System in the Netherlands and Germany respectively.
Abbott took delivery of its test samples on June 16–18, 2025, completed infringement testing by July 22, 2025, and filed its application for provisional measures on September 2, 2025.
Decision of the LD Hague
Jurisdiction
The LD Hague confirmed its international jurisdiction and internal competence over all the defendants.
The LD Hague was the court of domicile under Art 4 Brussels Regulation (recast) 1215/2012 (Brussels) for all the defendants domiciled within the UPC territory (i.e., Lotus, Medic NL and Medic DE). All divisions of the UPC are courts of domicile under Art 4 where the defendant is domiciled anywhere within the UPC territory. The LD Hague therefore had international jurisdiction over those defendants for infringement of EP 072 in Spain under BSH v. Electrolux (C-339/22).
The LD Hague had international jurisdiction over the Chinese (non-UPC) defendants under Article 8(1) Brussels, which applies to third state defendants domiciled outside of the EU1. Lotus NL (domiciled within the UPC) acted as an anchor defendant for the Chinese defendants because it was acting as their intermediary across the EU, including in Spain. This meant that there was a close connection between the claims because all defendants were accused of infringing the national part of the same EP 072 with the same CGM systems.
Urgency
The court rejected any argument that Abbott had delayed filing its application for provisional measures. Following receipt of its test purchase, Abbott took a little over a month to complete the infringement testing and filed the action six weeks later.
Overall, 2.5 months from receipt of the test purchase to filing the application was reasonable and consistent with previous UPC case law2. The fact that Abbott may have had access to an older version of the system beforehand did not alter this finding. The inner workings of this system may have differed and fallen outside the scope of EP 072’s claims, and, in any event, Abbott was under the impression that this version would not be marketed in the EU.
Validity
The defendant failed to meet the required standard that EP 072 was, on the balance of probabilities, more likely than not invalid due to added matter, insufficiency or lack of inventive step.
- Added matter: The skilled person could derive from the original application that the mechanism could be a spring or another bias mechanism. There was no reason why that person would have doubted the technical soundness of the more general teaching with regards to a bias mechanism. The court also rejected claims that omitting certain features constituted impermissible intermediate generalisations. Overall, it was more likely than not that the skilled person would have been able to derive directly and unambiguously the subject matter of the EP’s claims from the parent application.
- Insufficiency: According to the Court of Appeal’s guidance3, the non-availability of some embodiments of a functionally defined claim is immaterial to sufficiency, so long as the skilled person through the disclosure can obtain suitable embodiments within the scope of the claim. The description in EP 072 disclosed at least one detailed example and embodiments to illustrate how the invention could be put into practice, such that the skilled person could understand and reproduce the underlying principles of the invention (e.g., the application of an integrated glucose sensor and electronics assembly) using common general knowledge. The disclosure did not need to include specific instructions on how to obtain other conceivable embodiments that fell within the functional definitions in the claim.
- Inventive step: The court applied the UPC’s holistic approach to obviousness (see further here) and determined the claims to be inventive. The underlying objective problem of EP 072 was to provide an CDM device providing safety, ease and comfort of use. There was no motivation in the cited prior art documents for the skilled person to contemplate an integrated glucose sensor and sensor electronics assembly.
Infringement
The defendants did not dispute that their products fell within the scope of the patent claims.
Provisional measures
The court granted an immediately enforceable injunction prohibiting the defendants from offering, selling, or importing the Vista System and DiaExpert System across the UPC territory. For the Chinese manufacturer, seller and EU authorised representative4, the injunction also covered Spain, where the validity assessment was likely to be the same. The authorised representative qualified as a person to whom the acts of infringement were attributable.
The provisional infringement that had been established warranted an injunction to prevent lost sales and price erosion, which is difficult to quantify. In addition, the defendants were ordered to disclose information on distribution channels and to deliver-up infringing stock from the UPC and Spain.
Key takeaways
- UPC’s territorial reach over EU representative and non-EU defendants: The UPC was able to grant, in a single proceeding, provisional relief against these defendants covering the UPC territory and Spain. This is a reminder that non-EU manufacturers with EU authorised representatives may face UPC proceedings even without a direct EU presence. The UPC was also treated as a single court so that any local division would be considered to the court of domicile for Brussels purposes.
- Urgency requirements: The 2.5-month period from test purchase to filing the application for provisional measures was timely. Patent holders should nevertheless act promptly after identifying potential infringements, in order to gather sufficient evidence and complete technical analysis.
Footnotes
1. Barco v. Yealink (UPC_CoA_317/2025), Dyson v. Dreame (UPC_CFI_387/2025) and Art 71a Brussels
2. Abbott v. Sibio (UPC_CoA_382/2024)
3. Amgen v. Sanofi (UPC_CoA_528/2004)
4. The other defendants were not involved in any alleged infringements in Spain.
