Milan - Local Division
UPC_CFI_400/2024
Procedural Order
of the Court of First Instance of the Unified Patent Court
delivered on 01/10/2024
Order no. ORD_51903/2024
Applicant
EOFLOW CO LTD (intervener)
defendants
1) Insulet Corporation (applicant in the main
proceeding)
2) A. Menarini Diagnostics s.r.l.
(defendant in the main proceeding)

RELEVANT PROCEEDING PARTIES

PATENT AT ISSUE
Patent no. Proprietor/s
EP4201327 Insulet Corporation

COMPOSITION OF PANEL – FULL PANEL
Presiding judge Pierluigi Perrotti
Judge-rapporteur Alima Zana
Legally qualified judge Anna-Lena Klein
[Legally qualified judge Uwe Schwengelbeck

COMPOSITION OF PANEL - SINGLE JUDGE
Single judge Not provided

COMPOSITION OF PANEL - STANDING JUDGE
Standing judge Not provided

LANGUAGE OF PROCEEDINGS: English

SUBJECT-MATTER OF THE PROCEEDINGS

RULE N. 313 APPLICATION TO INTERVENE

ORDER

1. Summary of facts
On 8 July 2024 Insulet Corporation filed an application for provisional measure
against Menarini- -exclusive distributor in Europe of the patch-insulin pump EOPacht
(attached embodiment)- alleging the infringement of the patent EP 4201 327.
The hearing is scheduled for the 15 October 2024.
On 16 September 2024 Eoflow -the developer and manufacturer of the patch-insulin
pump EOPacht (attached embodiment). lodged an application to intervene pursu-
ant to Rule 313 R.o.P. in support of the request of the defendant support to dismiss
the application for provisional measures.
Eoflow specified that it is the defendant in parallel proceeding before the Milan Cen-
tral Division, started by the same applicant, Insulet Corporation.
The other parties were invited to lodge their comments. pursuant to rule 314 R.o.P.;
Insulet (applicant in the main proceeding) noted that the application to intervene is
not admissible in light of following reasons:
- Eoflow has no legal interest to intervene;
- it is already a party in parallel proceedings (UPC CFI 380/2024) before the
Milan Central Division.
- an intervention can only be dealt with in the proceeding on the merits;
- the interim injunction proceedings would otherwise slowed down.
Menarini (defendant in the main proceeding) agrees with the intervener noting that;
- Eoflow has legal interest to intervene, being in a legal relationship with the
supported party;
- Eoflow would be liable to Defendant under the warranty and indemnity provi-
sions of the exclusive distribution agreement.
2. General considerations
2.1 This Order is adopted having regards to:
(i) the following principles set out in the Preamble 2 of the RoP
- proportionality, flexibility and fairness;
- the discretional power for the judges to organise the proceedings in
the most efficient and cost effective manner;
-the Fairness and equity, having regard to the legitimate interests of all
parties;
(ii) the Rule n. 313 and segg. R.o.P.;
(iii) the case law of the UPC on the intervention.
2.2. Rule 313 ROP states that:
1. An Application to intervene may be lodged at any stage of the proceedings before
the Court of First Instance or the Court of Appeal by any person establishing a legal
interest in the result of an action submitted to the Court (hereinafter “the inter-
vener”).
2. An Application to intervene shall be admissible only if it is made in support, in
whole or in part, of a claim, order or remedy sought by one of the parties and is made
before the closure of the written procedure unless the Court of First Instance or Court
of Appeal orders otherwise.
2.3. Therefore, the conditions to intervention are the following:
-legal interest, direct and present in the issuance of the order or decision requested
by the assisted party;1
-in support by one of parties.
2.4. The deadline is the closure of the written procedure of the proceeding of the
merits (unless the Court orders otherwise).
The rules of procedures don’t specify if the intervention is admissible in the
IP proceeding, even the recall to the “written procedure” could suggest that
this instrument is provided only for the proceedings on the merits.
On the other hand, however, the Court notes that the paragraph 1 admits it
“at any stage of the proceedings”.
3. The case at hand
The intervener- the producer of the conflicting goods- alleged a direct and present in-
terest in the dismissal by the court of the order and it wishes to support the Defendant,
its distributor.
Deciding pursuant the rule of case by case the Court notes that the balance of con-
flicting interests suggests to deny the admissibility of the intervention, in light of the
following considerations:
(i) the efficiency of the proceeding and the interest of a speedy decision.
In the case at hand the application to intervene is lodged in a proceeding
for provisional measures pursuant to rule 206 ROP.
1 LD Duesseldorf, June 26, 2024, procedural order, UPC_CFI_457/2023; LD Vienna, July 30,
2024, procedural order UPC CFI 33/2024.
Even if the interpretation would generally consider the urgent procedure
compatible with the intervention of the third party:
- the procedure to introduce the third party ruled by rule 313 ROP e
segg. (first step on the admissibility and second step the filing of the
statement in intervention) is not compatible to the already scheduled
hearing for 15 October 2024;
- if the intervention was allowed, the interim injunction proceedings
would be excessively slowed down.
(ii) the intervener is the defendant in the parallel proceeding before the Central division relating to the same patent.
Therefore:
- it is likely to have been aware of the proceeding since last July 2024,
but it decided to intervene only 30 days before the hearing. The application to intervene goes against the applicant’s interest to a quick decision in interim injunction proceedings;
-its reasons against the patentee are already submitted to the Court in the
parallel proceedings;
(iii) the provisional measures is incidental to the main proceeding and it does not
have res iudicata effects (effects arising only from judicial decisions, which
become finale after all rights of appeal have been exercised or after expiry
of the time-limits of appeal).
Therefore, in the case at hand the third party intervention is only direct to
limit factual prejudice deriving from the judgment.
In other words, the outcome of this proceedings only affects Eoflow indirectly: it is only the supplier and the potential negative effects (an economic
impairment) at this stage appears only a side effect;
Eoflow’s direct interest is already overseen in the parallel proceeding pend-
ing before the Milan Central Division and there is not indivisible cause of
action, with compulsory joinder of the parties.

Therefore, the legitimate interests of the applicant (in the main proceeding) to a
speedy decision is higher than Eoflow's to intervene in this proceeding and Menarini’s
to be supported by the intervener.
In the light of the above considerations
the request to intervene is dismissed.

Delivered and signed in Milan 1 October 2024

ORDER DETAILS
Order no. ORD_51903/2024
UPC number: UPC_CFI_400/2024
Related proceeding no. Application No.: 40442/2024
Application Type: Application for provisional measures (RoP206)