The Hague - Local Division UPC_CFI_587/2025
UPC_CFI_624/2025

Order
of the Court of First Instance of the Unified Patent Court
delivered on 01/08/2025

APPLICANT
1) A.Menarini Diagnostics s.r.l.
(Applicant, Defendant in the main proceedings,
hereinafter: “Menarini”) - Via Sette Santi 3
50131 Firenze – IT
Represented by Edoardo Barbera

RELEVANT PROCEEDING PARTIES
1) Abbott Diabetes Care Inc.
(Applicant in the main proceedings,
hereinafter: “Abbott”)
1360 South Loop Road - CA 94502 - Alameda – US
represented by Christian Dekoninck
2) Sinocare Inc.
(Defendant in the main proceedings,
hereinafter: “Sinocare” and collectively with
Menarini: “Defendants”)
No.265, Guyuan Road, Hi-Tech Zone - 410205 - Changsha,
Hunan Province - CN
Not yet officially represented; counsel: Tjibbe Douma

PATENTS AT ISSUE
Patent no. Proprietor
EP3988471
EP4344633
Abbott Diabetes Care Inc
Abbott Diabetes Care Inc

DECIDING JUDGE
Judge-rapporteur

LANGUAGE OF PROCEEDINGS: English

PONTS AT ISSUE : postponement of oral hearing and procedural measures

BACKGROUND AND GROUNDS FOR THE ORDER
1. On 27 June 2025 Abbott lodged an application for provisional measures in the CMS as ACT_30994/2025, case UPC_CFI_587/2025, wherein Sinocare and Menarini are named as defendants.
2. Subsequently, Abbott lodged another application for provisional measures against the same defendants, asserting infringement of a different patent with the same product (the GlucoMen iCan CGM system), as ACT_32414/2025, case UPC_CFI_624/2025. This application was sent by email to the court on 4 July 2025 due to the temporary freeze of the CMS (from 4-8 July 2025) and uploaded in the CMS oOn 8 July 2025.
3. In proceedings regarding provisional measures, it is at the discretion of the court to, among other things, schedule an oral hearing and to invite a defendant to lodge an Objection to the application (R.209.1 (b) and (a) RoP, respectively). In exercising its discretion, the court shall, according to R.209.2 RoP, in particular take into account: (a) whether the patent has been upheld in an opposition procedure before the European Patent Office or has been the subject of proceedings in any other court; (b) the urgency of the action; (c) whether the applicant has requested provisional measures without hearing the defendant; and (d) any Protective letter filed by the defendant. When the court decides to have an oral hearing, the date shall be set as soon as possible after the receipt of the Application for provisional measures (pursuant to R.210.1 RoP).
4. No protective letter regarding the patents at issue was lodged by the Defendants. Abbott did not request provisional measures without hearing the defendants. Patent EP3988471 (EP471”) was upheld in amended form by the opposition division of the EPO. Appeal was not filed. The time limit for filing an opposition for patent EP4344633 (EP633”) has not yet expired. There are no relevant proceedings in other courts that have been brought to the attention of the court.
5. Taking into account the above, including the asserted urgency of the applications, the connectivity thereof as well as the availability of the panel, a date for the oral hearing (“OH”)
was set at 3 September 2025 for both ACT_30994/2025 and ACT_32414/2025. This date was communicated to Abbott by phone on 16 July 2025 (by the registry).
6. On 16 July 2025 the letter of service and the applications were delivered by courier to Menarini.
7. On 28 July 2025 Menarini filed the present applications (the R.9 Applications), as App_33807/2025 in ACT_30994/2025 and App_33811/2025 in ACT_32414/2025, requesting, also on behalf of “Sinocare”, the other defendant in the main proceedings not yet officially represented, to postpone the date of the OH, arguing that the present date does not allow for a fair trial. The applicant for provisional measures, “Abbott” was given the opportunity to respond, which it did, requesting to maintain the date of the OH.
8. The R.9 Applications are dismissed as unfounded. As recently considered by the LD Mannheim (order of 17 July 2025 in case UPC_CFI_500/2025), due to the inherent urgency of the hearing of an application for interim measures, a postponement of the hearing can only be considered in very special circumstances. In this case no special circumstances are present or even asserted by Defendants. Defendants do not argue that the court in exercising its discretionary decision to summon the parties to an OH, did not consider or wrongly applied any of the considerations mentioned in R.209.2 RoP. Defendants argue that an OH on 3 September 2025 does not take into consideration proportionality, fairness and procedural equity as there is no time for two written rounds. To substantiate this assertion, the Defendants refer to the complexity of the cases and rely on the alleged practice of the court in some other proceedings concerning applications for provisional measures to schedule the exchange of two written submissions by each side before the OH. Such practice in some PIs cannot be relied on, as the circumstances of every case are different. In so far as Defendants rely on the complexity of the cases at hand, they did not substantiate why these patent cases are more complicated than the average patent case. The argument that Abbott’s application lack (genuine) urgency, is disputed by Abbott and will be addressed at the OH.
9. In this case the scheduling of the OH in these preliminary relief proceedings on 3 September 2025 should allow the Defendants, who are both undisputedly aware of the applications for provisional measures already, enough time to prepare their defence, according to the court. The letter for service and the applications were delivered to Menarini on 16 July 2025, from which date it should or in any case could have been aware of the proceedings initiated by Abbott. In view of the fact that Menarini is the exclusive distributor of the allegedly infringing products which it obtains from and are produced by Sinocare, it can be assumed that Menarini informed Sinocare shortly after.
10. Counsel for Sinocare is mentioned as such in the R.9 Applications but has not registered in the CMS as a representative. As the R.9 Applications were filed also on behalf of Sinocare, the JR trusts that this will be remedied shortly. Currently, pending this registration, there is no workflow yet in ACT_30994/2025 or ACT_ 32414/2025 to confirm the date for the OH and for setting a date for filing an Objection. The JR will thus take the opportunity to do so in this order, as set out below, which order will then also be uploaded in the main workflow as soon as this is possible.
11. The oral hearing for both cases. EP471 (ACT_30994/2025) and EP633 (ACT_32414/2025) is confirmed to take place in The Hague on 3 September 2025 at 9:30.
12. Defendants are invited to lodge an Objection pursuant to R.209.1(a) RoP at or before 18 August 2025 10:00 a.m. as set out below, in the main workflow (a possibility thereto will be created as soon as this is possible). The (material part of the) Objections cannot contain more words than the material part of the respective Applications. Furthermore, Defendants are
requested to avoid duplication in the Objections regarding the reply to the parts of the Applications that are practically identical (i.e. Chapters 1-3 and 6-9 of the Applications). It is sufficient to address these in one of the Objections and refer to these parts in the other Objection (e.g. stating that a particular part of that text can be considered inserted).
13. Thereafter, only if an invalidity defence is raised in the Objections, Abbott shall be given the opportunity to file a limited reply to the Objection regarding (in)validity, which can then be submitted by 25 August 2025 10:00 a.m. The time limit for oral pleadings shall be determined after the filing of the Objections.

ORDER
1. The R.9 Applications (App_33807/2025 and App_33811/2025) are dismissed.
2. Parties are summoned to the oral hearing for both EP471 (ACT_30994/2025) and EP633 (ACT_32414/2025), to take place in The Hague on 3 September 2025 at 9:30
3. Defendants can file an Objection to the Application at or before 18 August 2025 10:00 a.m. under the conditions set out above at 12.

ORDER DETAILS
Order in ACTION NUMBER: ACT_30994/2025
UPC number: UPC_CFI_587/2025
AND in ACTION NUMBER: ACT_32414/2025
UPC number: UPC_CFI_624/2025
Actions concerning: Application for provisional measures (RoP206)
Relevant Applications: App_33807/2025 (in ACT_30994/2025) and
App_33811/2025 (in ACT_32414/20250)
Application Type: R.9