UPC CoA, 17 April 2026: A lot of what you may want to know on direct and indirect infringment, inventive step argumentation, scope of injunctions and cross-appeals
15-05-2026 Print this page
Preliminary injunction granted in appeal (R. 211 RoP, R. 242 RoP).
Claim construction (Article 69 EPC). Claim 1 only requires that the monitored glucose levels and the event data icons are included in the same timeline graph. The claim does not require both to be in the same area of the graph or within a certain range of one another.
Obviousness attack in proceedings for provisional measures requires substantiated argumentation (R. 24 RoP, R. 211 RoP, Article 56 EPC). A defendant who raises an obviousness attack in proceedings for provisional measures must substantiate why it considers it more likely than not that the patent will be held invalid based on the submitted prior art. This requires substantiated argumentation and not merely submitting a multitude of documents and quoting a few isolated sentences from each of these documents without explaining why a skilled person would make this combination and how the invention would be obtained in an obvious manner from this combination.
Assessment of inventive step and non-technical features (Article 56 EPC). A claim feature should not be excluded from the assessment of inventive step merely because it is a non-technical feature, i.e. a feature which, on its own, would be considered a “non-invention” under Art. 52(2) EPC. A feature that is non-technical as such may still contribute to the technical character of the claimed invention as a whole by its interaction with the other claim features. Therefore, the interrelationship and functioning of the claim features must be assessed together […].
No direct infringement (Article 25 UPCA). It is undisputed between the parties that Respondents do not sell or offer to sell receiver units (mobile phones) according to feature 1.4. As a result, the Respondents do not directly infringe claim 1 of the patent (Art. 25 (a) UPCA). The Respondents have also not been shown to directly infringe claim 14 (Art. 25 (b) UPCA). They have not been shown to use the patented process themselves, or to have offered the process in an infringing manner, i.e. by offering the patented process under the conditions of Art. 25 (b) UPCA for other than private and non-commercial use by diabetes patients (Art. 27 (a) UPCA).
Indirect infringement by Respondent 2 by offering and supplying to diabetes patients for their private and non-commercial use (Article 26 UPCA). In its brochures, via its website and at various exhibitions, Respondent 2 has promoted and sold the Sensor Assembly and the On-Body Device of the GlucoMen iCan in the UPC territory for use together with the iCan App to be installed on the users’ mobile phones.
Indirect infringement by Respondent 1 (i) by active involvement in the marketing and (ii) as someone to whom the acts of Respondent 2 are attributable as instigator, accomplice or accessory because of its strategic partnership with Respondent 2 (Article 26 UPCA, Article 63 UPCA).
Scope of preliminary injunction (Article 62 UPCA, R. 211.1(a) RoP).
Provisional injunction not extended to the earlier Sinocare iCan and its software application which has been on the market since October 2023 and against which Appellant has not acted prior to the institution of these proceedings.
Generally worded injunction generally justified and has the benefit that if, for example, the infringing product is slightly changed without altering the technical features that are decisive for the technical teaching of the patent, or similar products would be introduced on the market under a different name, these products are covered by the issued injunction.
Injunction limited to UPC territory (except Romania) for which jurisdiction has been accepted (Article 34 UPCA).
No grace period of one month in view of the contemplated design around. The Application was filed in June 2025, which provided sufficient time to the Respondents to perform the necessary preparations for the launch of a potential design around (the details of which were not provided by the Respondents).
Inadmissible cross-appeal (R. 220.1 RoP, R. 237 RoP).
Pursuant to R. 220.1 RoP, only a party adversely affected by a decision may lodge an appeal. The same applies to a cross-appeal pursuant to R. 237 RoP. 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.
That is the case here. The assessment whether the requirements of urgency have been fulfilled is a necessary part of the appeal. This same issue cannot form the subject of the cross-appeal. The cross-appeal should therefore be declared inadmissible and the Respondents shall bear the costs of the cross-appeal.
