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UPC – Abbott Diabetes Care v. Sibio Technology

06 Jul 2024

Graham​​​​ Burnett-Hall

Shoosmiths

Abbott Diabetes Care, Inc v. Sibio Technology Limited, UPC CFI The Hague LD, 19 June 2024, Reference numbers: UPC_CFI_130/2024; ACT_149944/2024

Order pursuant to R. 206 and 211 RoP (preliminary injunction and other provisional measures); R. 360 RoP (action devoid of purpose)

Abbott was the proprietor of EP 2 713 879, which concerned continuous glucose monitoring (CGM) devices. Sibio entered the European market with its CGM device at the end of 2023. Abbott commenced an application for a preliminary injunction. Sibio had filed a protective letter but it did not rely upon this. In fact Sibio did not dispute alleged infringement, not did they challenge validity. Instead Sibio argued that the application had become devoid of purpose, as Sibio had provided a unilateral cease and desist declaration and certain undertakings, and that the application should accordingly be disposed of by order under R. 360 RoP.

The Court held that the application was not devoid of purpose. Abbott had sufficiently demonstrated that Sibio had not fully complied with their own unilateral cease and desist declaration. Abbott had been able to purchase a further sample of the product in issue. The undertakings also did not include any penalty payment for non-compliance. Further, as Sibio contended that they had left the markets in which the Patent was in force, the Court could not see any legitimate interest on Sibio’s part in opposing the preliminary injunction sought by Abbott.

All conditions set out in R. 211 RoP were deemed to have been met regarding a preliminary injunction and the Court therefore granted a preliminary injunction in relation to Sibio’s “GS1” device and in respect of Germany, France, the Netherlands and Ireland. The Court considered that it had competence for Ireland: it was a signatory state to the UPCA and therefore a Contracting Member State, even though Ireland had not yet ratified the UPCA. Furthermore, Sibio had not in these proceedings challenged the competence of the Court with respect to Ireland (unlike in the parallel case 14945/2024). However, with respect to the United Kingdom, the Court did not understand Abbott’s application to be directed at the UK, given that the UK was no longer a Contracting Member State (even though the UK had ratified the UPCA before withdrawing).

The Court additionally ordered Sibio to deliver up stocks to the GS1 Device in its possession or ownership in France, The Netherlands, Germany and Ireland and ordered that the preliminary injunction and delivery up orders should be subject to a recurring penalty payment (in the event of non-compliance). The order of the Court was declared to be immediately enforceable. Sibio was further ordered to pay Abbott’s reasonable and proportionate legal costs, with an interim award of costs of €11,000.

The order can be read here.