Key takeaways
Joint hearing of both infringement action and counterclaim for revocation
The local division exercises its discretion to hear both the infringement action and the counterclaim for revocation (Art. 33(3)(a) UPCA). Such a joint hearing of the infringement action and the counterclaim seems to be appropriate in particular for reasons of efficiency. It is also preferable because it allows both issues – validity and infringement – to be decided on the basis of a uniform interpretation of the patent by the same panel composed of the same judges.
Early decision under Art. 33(3) UPCA
In general, an earlier decision under Art. 33(3) UPCA seems justified in the current situation of the Court, which is still under construction. Since some members of the panel are currently only employed on a part-time or case-by-case basis, it seems appropriate for reasons of procedural efficiency to obtain the assignment of the technically qualified judge (TQJ) at an early stage. Then he/she can be involved in the case management as soon as possible. Otherwise, there would be a considerable risk of delay if the TQJ was not appointed before the interim procedure and therefore could not be included in the time schedule at an early stage. An early decision on the bifurcation issue will set the framework for possible issues. This will enable the parties and the Court to manage the case accordingly.
Division
LD Düsseldorf
UPC number
UPC_CFI_499/2023
Type of proceedings
Patent infringement action and Counterclaim for revocation
Parties
Claimant: DexCom, inc.
Defendants:
- Abbott Laboratories
- Abbott Diabetes Care Inc.
- Abbott GmbH
- Abbott Diagnostics GmbH
- Abbott Laboratories GmbH
- Abbott Logistics B.V.
- Abbott France (S.A.S.)
- Abbott s.r.l.
- Abbott Gesellschaft m.b.H
- Abbott B.V.
- Abbott (S.A./N.V.)
- Abbott Scandinavia Aktiebolag
- Abbott Oy
Patent(s)
EP 4 026 488
Body of legislation / Rules
Rule 37.1, 37.2 RoP, Article 33 (3) UPCA
