Abbott Diabetes Care Inc. v. Sibio Technology Limited, Umedwings Netherlands B.V.

Abbott Diabetes Care Inc. is the proprietor of European Patent EP 3 831 283, which was filed as a second generation divisional application stemming from parent application EP 3 300 658 A1, itself originating from PCT application WO 2013/090215 A2. The patent has a filing date of 11 December 2012 and a priority date of 11 December 2011. It was published on 9 June 2021, with the mention of grant published on 26 April 2023. No opposition was filed. The patent is in force in UPCA Contracting Member States including Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, and Sweden, as well as in the UK, Ireland, and Spain. The patent was initially opted-out of UPC competence, but Abbott withdrew the opt-out on 14 March 2024.

The patent has two independent claims: claim 1 claims an on-body device comprising a glucose sensor assembly, an enclosure with a top portion and a base portion configured to be adhered to the skin surface, and sensor electronics positioned within the enclosure. Claim 15 claims a method for assembling such an on-body device.

Sibionics offered a continuous glucose monitoring device called the "GS1 CGM product" for sale on its sibionicsshop.com website. On 20 March 2024, Abbott filed an Application for a preliminary injunction and other provisional measures with the UPC Local Division The Hague, arguing that the GS1 CGM product infringed its patent. The Court of First Instance denied the application by Order no. ORD_30431/2024, finding that on the balance of probabilities, claim 1 and dependent claims 6, 7, 9, 11, 12, 13, 14, and 26 would likely be held to contain added matter relative to the original application as filed, the parent application as filed, and the application as filed, due to the omission of an elastomeric sealing member or a second elastomeric unit in the wording of the claim.

Abbott appealed this decision. The oral hearing was held on 27 November 2024. On appeal, Abbott requested that the impugned order be set aside and that the Court of Appeal grant a preliminary injunction prohibiting Sibionics from infringing the patent, particularly by making, offering, placing on the market, importing, or storing the GS1 Device. Abbott also requested orders for Sibionics to provide information about the origin, distribution channels, quantities, and third parties involved in the production or distribution of GS1 Devices, as well as delivery-up of infringing products, all subject to penalty payments.

The Court of Appeal established several key legal principles: (1) as a general principle of claim interpretation, means-plus-function features must be understood as any feature suitable for carrying out the function; (2) a general injunction may be justified even if it is not shown that a patent is infringed by all possible infringing acts, as one type of likely infringement suffices as a basis for a general preliminary injunction covering all possible ways of infringing; and (3) the measures mentioned in Art. 67 UPCA may also be ordered in the framework of provisional measure proceedings, provided there is an urgent interest and such measures are proportionate.

The Court of Appeal set aside the impugned order and granted Abbott's requests. The Court ordered Sibionics, individually and jointly, to refrain from any infringing acts as set forth in Art. 25(a) UPCA with any product according to claim 1 of the patent, particularly the GS1 Device, in the Contracting Member States where the patent is in force. Sibionics was ordered to provide written information about the origin, distribution channels, quantities, and third parties involved in the production or distribution of GS1 Devices within four weeks of service. Sibionics was also ordered to deliver up any GS1 Device in stock or possession to a bailiff appointed by Abbott within one week of service. These orders were subject to recurring penalty payments of up to EUR 10,000.00 for each violation plus EUR 100,000.00 for each day of continued non-compliance. Sibionics was ordered to jointly and severally bear the reasonable and proportionate legal costs and expenses incurred by Abbott in both proceedings, except for costs related to the request for suspensive effect and Abbott's request to extend the application to Ireland. Sibionics was also ordered to pay Abbott an interim award of costs of EUR 11,000.00. The order was declared immediately enforceable.