2026-09-07 - LD Milan - Abbott v. Sibio Technology et al. - UPC-CFI-0001086/2026

HEADNOTES: The Court considers that, in the specific circumstances of the present case, the new defence arguments submitted by the respondents for the first time in their last written submission concerning the interpretation and infringement of feature 1.6 are admissible. For the purpose of assessing the admissibility of the new arguments raised by the respondents with regard to the interpretation and infringement of feature 1.6, the following considerations are relevant. First, it should be emphasised that claim construction is a matter of law, on which the Court may therefore also elaborate ex officio. The classification of this issue as a matter of law also entails that, had this Court held the respondents’ new submissions on this point to be inadmissible at first instance, the Court of Appeal could, in all likelihood and in full compliance with the adversarial principle, have taken those same arguments into consideration, with the practical consequence that one level of jurisdiction on a substantive issue in the present dispute would have been lost (for such a case, specifically related to non-infringement arguments, see UPC CoA no. 36/2026, order of 8 July 2026, para. 158 et seq.). At the same time, it is essential and indispensable that the opposing party is always given the opportunity to be heard, in accordance with the adversarial principle and the right of defence. The respondents introduced this new argument in their last written submission, filed one month before the oral hearing, without relying on any additional factual element or document that had not been on the case file from the outset of the proceedings. Against that procedural background, significance must also be attached to the applicant’s conduct, since the applicant merely objected to the late filing, without requesting, even in the alternative or as a subsidiary request, the grant of a short time limit to file a reply confined to that specific issue. During the oral hearing, the applicant was in fact given an adequate opportunity to respond to that specific argument, both as regards the interpretation of the claim and as regards infringement of the patent. All the foregoing considerations must be assessed in the specific context of proceedings for provisional measures, where there is considerable time pressure and the parties are required to organise their arguments within very short time limits. A different conclusion would amount to an overly rigid application of the front-loaded character of UPC proceedings, at least in the specific context of proceedings for provisional measures, with an excessive and in any event disproportionate impairment of the effectiveness of the right of defence.

The Milan Local Division granted a UPC-wide preliminary injunction over a continuous glucose monitoring system, holding it more likely than not that the patent is valid and literally infringed. It first admitted the respondents' new claim-construction and non-infringement arguments filed one month before the hearing: claim construction is a matter of law the Court may address ex officio, refusing the arguments would risk losing an instance because the Court of Appeal could take them up, and in provisional-measures proceedings a rigid application of front-loading would disproportionately impair the right of defence. On construction it adopted a balanced approach — functional claim wording read in the light of the disclosed embodiment but not confined to its structural detail — and rejected a limitation to a movable inner housing that was inferable only from the shading of a drawing and named nowhere in the description. All three validity attacks failed at the prima facie standard, the insufficiency case being undermined by the respondents' own inventive-step case that a workable alternative to the disclosed mechanism was obvious, and the inventive-step attack failing because the chosen starting point taught away from adding a complex inserter. The EU authorised representative under Art. 11 MDR was held to be an infringer within Art. 25 and 63 UPCA. The balance of interests favoured the applicant because of price erosion in tender-based and insurance-based reimbursement segments, and the interim costs award was moderated to 30% of the ceiling because the respondents had honoured an undertaking to give two months' notice before market entry.