Paris Local Division
UPC_CFI_395/2023
Procedural Order
of the Court of First Instance of the Unified Patent Court
delivered on 25/11/2024

APPLICANT
1) DexCom, Inc.
6340 Sequence Drive
92121 - San Diego, CA - US
Represented by
Anne-Charlotte Le Bihan

RESPONDENTS
1) Abbott Logistics B.V.
Postbus 365
8000AJ Zwolle – NL
Represented by
Christian Dekoninck
2) Abbott Diagnostics GmbH
Max-Planck-Ring 2
65205 Wiesbaden – DE
3) Abbott France
40/48 Rue d’Arceuil
94593 Rungis CP 10457 France
Represented by
Christian Dekoninck
Represented by
François Pochart
4) Abbott Oy
Karvaamokuja 2 A
00380 Helsinki - FI
Represented by
Christian Dekoninck
5) Abbott Diabetes Care Inc.
1360 South Loop Road
94502 Alameda, CA - US
Represented by
Christian Dekoninck
6) Newyu,Inc.
100 Abbott Park Road,
D367 AP6D Sales Tax
60064 Abbott Park, Illinois - US
Represented by
Christian Dekoninck
7) Abbott Laboratories
100 Abbott Park Road
60064 Abbott Park, IL - US
Represented by
Christian Dekoninck
8) Abbott Laboratories A/S
Emdrupvej 28C
2100 Copenhagen - DK
Represented by
Christian Dekoninck
9) Abbott Scandinavia Aktiebolag
Hemvärnsgatan 9
171 54 Solna - SE
Represented by
Christian Dekoninck
10) Abbott
Avenue Einstein 14
1300 Wavre - BE
Represented by
Christian Dekoninck
11) Abbott GmbH
Max-Planck-Ring 2
65205 Wiesbaden - DE
Represented
Christian Dekoninck
12) Abbott Gesellschaft m.b.H.
Perfektastrasse 84A
1230 Wien - AT
Represented by
Christian Dekoninck
13) Abbott S.r.l.
Viale Giorgio Ribotta 9
00144 Rome - IT
Represented by
Christian Dekoninck
14) Abbott B.V.
Wegalaan 9
2132JD Hoofddorp - NL
Represented by
Christian Dekoninck

PATENT AT ISSUE
Patent no. Proprietor
EP3831282 DexCom, Inc.

DECIDING JUDGE
Presiding judge Camille Lignières

LANGUAGE OFPROCEEDINGS: English

ORDER
Facts and procedure
The oral hearing in the infringement action based on DEXCOM's patent EP'282 was held on Octo-ber
30, 2024, the debates were closed on that date and the final decision was announced to be
issued on December 11, 2024.
On 12 November 2024, DEXCOM submitted an application pursuant to R. 334.e) and 336 RoP for
the Court to communicate with the parties to instruct them about its wishes to comment on the
decision rendered by the Regional Court of Munich on November 6, 2024 relating to the validity
and infringement of the German part of EP 2,939,158 by Defendants 1 and 11.
In support of its application, DEXCOM argues that:
-the Munich Regional Court rendered, on 6 November 2024, a decision whereby it ruled that claims
1 and 12 of the German part of European patent EP 2 939 158 (hereinafter “EP’158”) are indirectly
infringed by Defendants 1 and 11 and that the proceedings should not be stayed because the pa-tent
is likely to be valid;
- EP’158 is the parent patent of EP’282 and its independent method claim 1 closely resembles claim
1 of EP’282.
- the subject matter of claim 1 of EP’158 is very similar to the subject matter of claim 1 of Auxiliary
Request 2 of EP’282.
DEXCOM concludes that the Munich ruling is of relevance to the present proceedings because
Defendants had adopted the same misconstruction strategy, which was entirely dismissed by the
Munich Regional Court.
4
In its comments in reply, ABBOTT requests the Court to:
- 1) declare DEXCOM’s Application inadmissible arguing that
DEXCOM’s application refers to Chapter 8 of the RoP regarding case management and has no legal
basis because the rules of Chapter 8 relate to the case management up to the stage after the
closure of the interim conference but before the oral hearing.
- 2) receive ABBOTT’s comments on DEXCOM’s Application and on the decision rendered by the
Munich Regional Court on November 26, 2024, arguing that:
-the Regional Civil Courts does not address the validity of the patent in suit;
-EP’282 is related to another invention with specific features (invitation), such as the invitation
scheme which is not comprised in Claim 1 of EP’158;
-it follows that the subject matter of claim 1 as granted of EP’282 is different from the one of EP
158 and shows that the German decision regarding the EP’158 case has no relevance regarding the
ongoing EP’282 case.
Legal framework
Rule 334 – Case management powers:
Except where the Agreement, the Statute or these Rules provide otherwise, the judge-rapporteur,
the presiding judge or the panel may:
(…)
(c) communicate with the parties to instruct them about wishes or requirements of the Court;
Rule 336 – Exercise of case management powers:
The Court may exercise its case management powers on the application by a party or of its own
motion, unless otherwise provided.
Grounds
In the UPC Rules of Procedure (RoP), case management powers are not limited to the stage of the
proceedings that ends with the closure of the interim procedure, until when the Judge-Rapporteur
is in charge of it.
On the contrary, the Court, and in particular the Presiding Judge, could exercise his/her case man-agement
powers after the closure of the interim procedure. (ref. Book “Unified Patent Protection
in Europe”, W. Tillmann and C. Plassmann, 1st edition, Oxford University Press, pages 2332 to 2334)
Even after the oral hearing since the case is pending the presiding judge remains in charge of the
case management as foreseen in Art. 43 UPCA and Chapter 8 of the RoP on Case management.
Therefore, the DEXCOM’s application based on R 334 and R 336 RoP is admissible.
However, the Court considers that this request made at a very late stage of the proceedings is not
justified, since the decision in question does not concern the patent at issue in the present case,
but its parent patent, which discloses another invention with similar but also different features.
Moreover, the Regional Court of Munich, seized by an infringement action, did not examine the
validity issue on the merits but in a context of a request for a stay with regard to the pending nullity
proceedings before the Federal Patent Court.
It follows that there is no justification in the present case for an order authorizing the reopening
of the debate after the Oral hearing.

Therefore, the Court orders that:
The DEXCOM application is admissible but not well grounded and is dismissed.
This order may be reviewed pursuant to R. 333 RoP.

Issued in Paris, on 25 November 2024.


ORDER DETAILS
Order no. ORD_62696/2024 in ACTION NUMBER: ACT_583778/2023
UPC number: UPC_CFI_395/2023
Action type: Infringement Action
Related proceeding no. Application No.: 60804/2024
Application Type: Application pursuant to R. 334.e) and 336 RoP