UPC Court of Appeal UPC_CoA_382/2024 APL_39664/2024 App_43560/2024

ORDER

of the Court of Appeal of the Unified Patent Court issued on 26 July 2024

concerning an application pursuant to R.9 RoP Application to disregard the submitted auxiliary requests

APPLICANT / APPELLANT / CLAIMANT IN THE MAIN PROCEEDINGS BEFORE THE COURT OF FIRST INSTANCE

Abbott Diabetes Care Inc. , Alameda, California, USA, hereinafter also referred to as 'Abbott'

represented by: Eelco Bergsma, Attorney at law, Taylor Wessing, Eindhoven, the Netherlands

RESPONDENTS / DEFENDANTS IN THE MAIN PROCEEDINGS BEFORE THE COURT OF FIRST INSTANCE

• 1. Sibio Technology Limited , Cambridge, United Kingdom
• 2. Umedwings Netherlands B.V. , Cambridge, United Kingdom

hereinafter also referred to as ' Respondents '

both represented by: Thomas Gniadek, Thomas Gniadek, Rechtsanwalt, Simmons & Simmons LLP, Munich, Germany

LANGUAGE OF THE PROCEEDINGS

English

PATENT AT ISSUE

EP 3 831 283

PANEL

Second Panel

DECIDING JUDGES

This order was adopted by Rian Kalden, Presiding judge and judge-rapporteur

IMPUGNED ORDER OF THE COURT OF FIRST INSTANCE

• □ Date: 19 June 2024; ORD_30431/2024 in the main proceedings concerning provisional measures ACT_14945/2024
• □ Action number attributed by the Court of First Instance, Local Division The Hague: UPC_CFI_131/2024

POINTS AT ISSUE

Application for leave to change the claim pursuant to R.263 RoP; Allowability of auxiliary requests

PROCEDURAL BACKGROUND

• 1. On 20 March 2024, Abbott filed the Application for a preliminary injunction and other provisional measures (ACT_14945/2024) with the UPC Local Division The Hague. The Court of First Instance denied that Application by Order no. ORD_30431/2024. Subsequently, Abbott lodged an appeal against this Order on 3 July 2024.
• 2. In the Statement of appeal and grounds of appeal, Abbott requests that the impugned order is set aside and that the requests as stated in the Application for provisional measures of 20 March 2024, submitted at the Court of First Instance, is granted or, alternatively, granted as amended in the Application for leave to change the claim of 3 July 2024.
• 3. In its Statement of appeal and grounds of appeal, Abbott relies on four auxiliary requests. Respondents requested that the Court of Appeal disregards these requests pursuant to R.222.2 RoP or, if admitted, would grant Respondents an extension of deadline for the Statement of response of at least four weeks.
• 4. The Court of Appeal issued an order to the effect that:
• a. It shall decide on the allowability of the auxiliary requests after having heard the parties at the oral hearing. This means that the parties shall be prepared to also argue their case on the basis of the auxiliary requests at the oral hearing in substance, should the Court of Appeal decide to allow the auxiliary requests.
• b. In view of the foregoing, the Court of Appeal accepts that Respondents' request for an extension of the deadline for lodging the Statement of response is reasonable, also taking into account the summer holiday period.

INDICATION OF PARTIES' REQUESTS

In its uninvited response to the Respondents' requests to disregard Abbott's auxiliary request and to grant an extension of time to lodge the Statement of response, filed in a R.9 RoP application, Abbott requests that both requests shall be refused.

GROUNDS FOR THE ORDER

• 5. The Court of Appeal has decided upon Respondents' request by order issued on 23 July 2024 (ORD_43134/2024 App_42682/2024), as stated above. The arguments brought forward by Abbott in its response do not lead to another evaluation.
• 6. The Court of Appeal notes that the allowability of auxiliary requests in preliminary injunction proceedings has not yet been decided by the Court of Appeal and merits a discussion during the oral hearing.
• 7. With the time extension, the Court has taken into account the interests of both parties, including the interest Abbott has of a quick oral hearing and decision in the case. This has been balanced against the interests of the Respondents to respond to the auxiliary requests also in substance, which were only introduced at the stage of the appeal proceedings, also taking into account the summer holiday period. By introducing the auxiliary requests Abbott should have anticipated that this could cause delay.

ORDER

• -Abbott's requests are rejected.

Issued on 26 July 2024,

Rian Kalden, Presiding judge and judge-rapporteur