The Hague - Local Division
Procedural Order
of the Court of First Instance of the Unified Patent Court
delivered on 17/09/2024
Date of receipt of Statement of claim : Not provided
Dexcom Inc.
(Defendant) -
6340
Sequence
Drive - CA
92121-4356 -
San Diego -
US
Statement
of claim
served on
30/11/2023
Dexcom
International
Limited
(Defendant) -
1 Lampousas
Street - 1095
- Nicosia - CY
Statement
of claim
served on
20/12/2023

REFERENCE CODE ECLI: Not provided

CLAIMANT/S
1) Dexcom International Limited
(Claimant) - 1 Lampousas Street - 1095 -
Nicosia - CY
Represented by Tjibbe
Douma

DEFENDANT/S
1) Abbott Diabetes Care Inc.
(Defendant) - 1360 South Loop Road - CA
94502 - Alameda - US
Represented by Eelco Bergsma
2) Abbott Diabetes Care Inc.
(Defendant) - 1360 South Loop Road - 94502
California - Alameda - US
Represented by Eelco Bergsma

PATENT AT ISSUE
Patent no. Proprietor/s
EP4070727 Abbott Diabetes Care Inc.
No SPC details provided

DECIDING JUDGE
Judge-rapporteur Edger Brinkman

LANGUAGE OF PROCEEDINGS: English

SUBJECT-MATTER OF THE PROCEEDINGS
Counter claim for revocation – amendment of counter claim

ORDER SOUGHT AND DEFENCE
Claimants in the counter claim, defendants in the main infringement claim (hereinafter
Dexcom) have requested the court for leave to amend their counter claim as follows:
“III. declare that the Dexcom G7-System used with the G7-Receiver falls outside the scope of
protection of EP 4 070 727 B1, and/or that making, offering, placing on the market or using
the G7-System used with the G7-Receiver, or importing or storing these products for those
purposes does not constitute infringement of EP 4 070 727 B1.”
Dexcom points to the withdrawal of part of the infringement claim by defendants in the
counter claim, claimants in the main infringement proceedings (hereinafter Abbott), namely
that the G7-System with a G7-Receiver infringes the patent. Abbott maintain the infringement
claim against the G7-System with the G7-App. With a claim for a declaration of non-
infringement of the G7-System used with a G7-Receiver, Dexcom wishes to obtain legal
certainty.
Abbott opposes the requested amendment as it considers it does not meet the requirements
of R. 263.2 RoP.

GROUNDS FOR THE ORDER
The JR agrees with Dexcom that they could not reasonably have filed the amendment at an
earlier stage. Dexcom indicated their intention to amend the counter claim in their reply to
the defence in the counter claim, which is their first written filing (stage) after Abbott
indicated their withdrawal of the claims against the G7-System with G7-Receiver. In as far as
Abbott contend that this claim could and should have been filed with the Statement of
Defence including a counter claim, this is rejected. As Dexcom argue, at the time they could
not yet envisage Abbott’s withdrawal. The JR fails to see a valid reason in the mere possibility
of such withdrawal that Dexcom should have reasonably anticipated it. After all, the
statement of claim in the infringement proceedings clearly indicated otherwise. Subsection B
of the statement of claim deals with the alleged infringement regarding the G7-Receiver,
while subsection A regards the G7-App. Whether Dexcom have a proper legal interest in this
declaration of non-infringement, as Dexcom allege but Abbott contest, is a matter for the
panel to decide.
While it may be true that meanwhile Abbott filed its rejoinder in the counter claim (on 22
August 2024), this does not mean Abbott are unreasonably hindered in their defence to it. As
will be stipulated below, they can file a separate submission on the amended claim, equally
within one month after today (30 days).

ORDER
Leave to amend the claim is granted.
Abbott may respond within 30 days to the amended claim.

ORDER DETAILS
Order no. ORD_52140/2024 in ACTION NUMBER: CC_13898/202423
UPC number: Not provided
Action type: Infringement Action / Counter Claim
Related proceeding no. ACT_586899/2023