2025-05-01 - CoA - Insulet v. EOFLOW - UPC_CoA_768/2024

1. The interpretation of a patent claim is a matter of law. Therefore, the Court cannot leave the judicial task of interpreting the patent claim to an expert but has to construe the claim independently. 2. The skilled person is a notional entity that cannot be equated with any real person in the technical field of the invention. The decisive factor is not the individual knowledge and abilities of a person, but rather the general specialist knowledge that is customary in the relevant field of technology, as well as the average knowledge, experience, and abilities in this specialist field. It is for the Court, not the expert, to assess these circumstances. 3. In general, the risk of the continuation of the infringement arises from a prior infringement, if the infringer does not issue a cease-and-desist declaration with a sufficient penalty clause. 4. If one party is partially unsuccessful, the costs do not always have to be apportioned proportionately. In particular where a party's unsuccessful claim was relatively minor and did not cause further costs, its entire costs may be awarded against the other party.

The Court of Appeal set aside the Milan Central Division's refusal of a provisional injunction over an insulin patch pump and granted the measure itself. Its first holding is institutional: the construction of a patent claim is a question of law which the Court must perform independently and cannot delegate to an expert, and the fact that only one party filed an expert opinion does not oblige the Court to follow it — the skilled person is a notional entity whose general knowledge the Court assesses, while party expert opinions are considered only on facts capable of proof. On the substance it read the claim as directed to an assembled device requiring permanent threaded engagement of nut and leadscrew, and on that construction neither prior-art document anticipates or renders obvious the switchable clutch. On necessity it applied its own line of authority: irreparable harm is not a condition, direct competition on a two-product market may itself justify measures to preserve the status quo, and a delay in starting main proceedings counts against the applicant only where it had a real opportunity to file. It held that a risk of continued infringement follows from a prior infringement where no cease-and-desist declaration with a sufficient penalty clause has been given. The information order was split: origin, distribution channels and the identity of those involved serve the prevention of further infringement and were granted; quantities and prices serve the damages calculation and were refused for want of a shown urgent interest.