Key takeaways
Non-technical features (on their own a “non-invention” acc. to Art. 52(2) EPC) must not be excluded from the inventive step assessment if they contribute to the technical character of the invention through interaction with other claim features (headnote 1; para. 112)
The Court held that the interrelationship and functioning of all claim features must be assessed together. Features relating to the user interface of a glucose monitoring system were found to be technical and to contribute to an improved human-machine interaction facilitating diabetes management, even though some features, taken in isolation, could be regarded as non-technical. The Court thus aligned with and referenced EPO Board of Appeal decision T 641/00 (COMVIK) and Enlarged Board of Appeal decision G 1/19.
A cross-appeal is inadmissible if the only purpose of the cross-appeal is to change (a certain part of) the reasoning of the Court in First Instance, which in its result is in favour of the party filing the cross-appeal (R. 220.1, R. 237 RoP) (headnote 2; para. 208)
The respondents’ cross-appeal against the assumption of urgency was declared inadmissible. The first-instance order had dismissed the appellant’s application in its entirety which was a result in the respondents’ favour. A cross-appeal cannot serve merely to alter the reasoning underpinning a favourable outcome. The urgency question was properly assessed as part of the appellant’s main appeal under R. 211.4 RoP.
A “timeline graph” in a patent claim is not limited to the area between axes; elements placed below the x-axis can be part of the graph if a time correlation is established (Art. 69 EPC) (para. 52 et seqq.)
The Court reversed the first-instance finding on infringement. The term “graph” carries its ordinary broad meaning (a diagram showing the relation between quantities). Event data icons placed below the x-axis of a timeline graph still form part of that graph, provided a temporal correlation with the monitored glucose levels can be established. There is no requirement for icons to be located near the graph line or between the axes.
Offering a software app via app stores and selling hardware components can constitute indirect infringement even without supplying the device serving as receiver unit (Art. 26, Art. 63 UPCA) (para. 61 and 122 et seqq.)
Neither respondent sold mobile phones (the “receiver unit”), precluding direct infringement of claim 1. However, the respondents indirectly infringed by supplying essential means (sensor components and the app) suitable and intended for putting the invention into effect. The exception under Art. 26(3) UPCA for supply to private end users did not apply.
An eight-week delay between product launch and filing for provisional measures is not unreasonable where thorough technical and market investigation was required (R. 211.4 RoP) (para. 160 et seqq.)
The decisive date for urgency was when the product and its user guide became publicly available, enabling the appellant to investigate infringement. The appellant acted diligently by purchasing samples, conducting analysis and tests, and investigating marketing activities before filing. The Court emphasised that no party can be expected to initiate proceedings without adequate preparation. The appellant’s prior inaction against a technically similar product did not defeat urgency regarding the accused product which was aimed at a different and larger market.
A “shotgun” invalidity approach citing numerous prior art references with minimal argumentation does not satisfy the substantiation requirements in PI proceedings (para. 85 et seqq.)
A defendant raising an obviousness attack in provisional measures proceedings must substantiate why it is more likely than not that the patent will be held invalid. Merely submitting a multitude of documents with a few isolated sentences, without explaining why the skilled person would make the combination and how the invention would obviously result, is insufficient. The Court assessed only those combinations that were properly argued.
Division
Court of Appeal Luxembourg
UPC number
UPC_CoA_901/2025; UPC_CFI_587/2025
Type of proceedings
Appeal regarding request for provisional measures
Parties
Appellant: Abbott Diabetes Care Inc.
Respondent 1: Sinocare Inc.
Respondent 2: A. Menarini Diagnostics s.r.l.
Patent(s)
EP 3 988 471
Body of legislation / Rules
RoP: R. 206.2, R. 211, R. 220.1, R. 237
UPCA: Art. 26, Art. 62, Art. 63
Art. 52(2) EPC, Art. 69 EPC, Art. 76(1) EPC, Art. 123(2) EPC
