Short Summary
The Milan Local Division of the Unified Patent Court dismissed Insulet Corporation's application for a cost decision against Eoflow Co Ltd, which had unsuccessfully attempted to intervene in provisional measures proceedings concerning patent EP4201327. The Court held that the rules on costs (Rules 150 et seq. RoP) require a prior existing decision on costs in principle, and since the order refusing Eoflow's intervention contained no such cost decision, the application was procedurally deficient.
Detailed Summary
This case concerns an application for a cost decision filed by Insulet Corporation against Eoflow Co Ltd in the context of provisional measures proceedings before the Milan Local Division of the Unified Patent Court.
Procedural Background:
On 8 July 2024, Insulet Corporation filed an application for provisional measures against Menarini Diagnostics s.r.l., the exclusive European distributor of the EOPatch insulin pump, alleging infringement of European patent EP4201327. On 16 September 2024, Eoflow Co Ltd, the developer and manufacturer of the EOPatch, applied to intervene under Rule 313 RoP in support of Menarini's request to dismiss the provisional measures application. Eoflow noted it was the defendant in parallel infringement proceedings before the Milan Central Division brought by Insulet. On 1 October 2024, the Court dismissed Eoflow's intervention request, finding it incompatible with the urgency of the provisional measures proceedings and noting Eoflow's direct interest was already addressed in the parallel proceedings.
On 24 October 2024, Insulet lodged an application for a cost decision seeking €15,748.00 from Eoflow for costs incurred in filing comments opposing the intervention under Rule 314 RoP.
Eoflow's Objections:
Eoflow raised multiple objections: (i) no provision in the UPCA or RoP directly addresses costs against an intervener whose intervention was refused; (ii) Eoflow could not be regarded as an 'unsuccessful party' under Article 69 UPCA and Rule 156.1 RoP; (iii) Rule 150 RoP et seq. requires an already existing decision on costs in principle, which was absent; (iv) Article 69(1) UPCA and Rule 156.2 RoP allocate the costs of commenting on an intervention to the commenting party itself; and (v) the claimed costs were neither proven nor proportional.
Court's Reasoning:
The Court analyzed the two-stage structure of intervention under Rules 313-314 RoP. Under Rule 315.4 RoP, an intervener becomes a party only if the intervention is admitted. Since Eoflow's intervention was refused, it was never treated as a party, which is a necessary condition for being considered an 'unsuccessful party' under Rule 156 RoP.
The Court further held that Rules 150 et seq. RoP require an already existing decision on costs in principle, as inferred from Rule 156(e) RoP, which mandates that an application for a cost decision contain a preliminary estimate of legal costs submitted pursuant to Rule 118.5 RoP. The judge rapporteur under Rule 150 RoP only deals with the fixation of the amount of compensation for costs, not with the principle decision on costs. The cost decision is binding on the cost award decision.
In the case at hand, unlike a similar case decided by the Milan Central Division on 23 December 2024, the order refusing Eoflow's intervention filed on 1 October 2024 did not contain any cost decision. Insulet did not seek a decision on costs at that stage, and the Rules of Procedure did not explicitly provide for one. This procedural deficiency—lacking the requirement under Rule 156(e) RoP—precluded the granting of the application.
Decision:
The Court dismissed Insulet's application for a cost decision, holding that the application lacked an essential requirement to quantify costs because the Court could not apportion costs in the absence of a prior cost decision. The Court noted that the application may be resubmitted supported by a costs award decision.
Practitioner Note
This case demonstrates the evidentiary and procedural standards applied in patent matters before Milan (IT) Local Division. Understanding the court's reasoning in Insulet Corporation vs Eoflow Co Ltd is valuable context for structuring arguments or assessing risk in similar proceedings.
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