7 October 2024
Nordic-Baltic Division (RD), Abbott vs Dexcom
Early „interim conference“
UPC_CFI_430/2023, ORD_55063/2024
Interim conference in order to deal with various requests during the written procedure (which was put on hold by the RD after request to amend the claim)
Decision by JR: Rejection
1. Dismisses request for amendment of claim
The request was to change the request for an injunction against “defendants individually and jointly” in “defendants individually and/or jointly” and to change the original claim for an injunction for direct and indirect infringement by adding “contributing infringement”.
2. Dismisses application to provide information
This request was dismissed as claimant already had all the material facts on which the infringement claim was based. Defendant did not dispute these facts but only that these amounted to infringement.
3. Dismisses the ground for revocation based on the Heller document
Reason: should have been filed with statement of defense/counterclaim for revocation.
4. Parties are invited to indicate information 176 RoP (application for hearing a witness)
5. Time schedule for the further written procedure
6. Date 18-12-2024 for hearing party experts and 19-12-2024 for the oral hearing
9 October 2024
Court of Appeal, Suinno Mobile & Al Technologies vs Microsoft
No leave no appeal
UPC_CoA_586/2024, ORD_55372/2024
1. Request for discretionary review (of order to provide security) is not admissible as Suinno failed to request leave for appeal from the LD.
2. The fact that the Division did not mention the possibility of asking leave for appeal has no consequences as nothing is mentioned to that effect in 158 RoP.
9 October 2024
Court of Appeal, EO Flow Co. Ltd. vs Insolet
Facts
Insolet sues the Korean EO Flow Co. in the CD Milan and the Italian distributor Menarini in the LD Milan in P.I. proceedings about the same patent and the same products. EO Flow and Menarini Diagnostics want both cases consolidated and EO Flow asks the CD to have the case heard together with the case in the LD (RoP 340). The JR refused, the panel confirmed (RoP 333) on 24 September. Then Menarini Diagnostics tried to intervene in the CD proceedings. That was also rejected by the CD on October 1.
Thereafter
EO Flow appealed from the 24 September decision and asked to shorten the time for response for Insulet so that it could get a decision of the Court of Appeal before the date of the hearings in the two P.I. cases.
Decision
The CoA refused to shorten the time for an answer also because Insulet should have immediately appealed (after the Order of 24 September).
9 October 2024
Court of Appeal, Shark Ninja vs Dyson
Content of Appeal
UPC_CoA_297/2024, ORD_53013/2024
In the Order of the second chamber of the Court of Appeal issued after the interim conference the court refused to dismiss certain grounds of appeal and refused a request to submit new evidence.
The Court of Appeal referring to 222.1 and 2 RoP and 226 RoP stated:
1. Requests, facts, evidence and arguments submitted in the Statement of Appeal and the Statement of Grounds of Appeal constitute, on the appellant’s side, the subject matter of the proceedings.
2. How much detail this has to contain has to be assessed on a case-by-case basis depending also on how detailed the appealed Order is in the contested parts.
3. A general reference that everything what is submitted in first instance is repeated in appeal is not enough.
4. Shark Ninja has not convincingly argued why the submissions in the US case are relevant. Moreover, these could have been filed earlier.
10 October 2024
Düsseldorf Local Division, SodaStream Industries vs Aarke
No postponement
UPC_CFI_373/2023, ORD_55600/2024
Defendant asks for postponement oral hearing until the Court of Appeal decided his appeal against the refusal of the LD to order security for costs
The LD refuses:
a) as this is not efficient and cost effective
b) Art. 74(3) UPCA (continuation of the main proceeding pending appeal against procedural orders) is not applicable
c) moreover the court can always decide to postpone its decision after the oral hearing.
10 October 2024
Düsseldorf Local Division, Seoul Viosys vs Export Klein GmbH etc.
Proportionality of permanent injunction
UPC_CFI_363/2023, ORD_598458/2023
♦ LD states every defendant is entitled to his own defence and can decide whether or not to raise invalidity. As defendant 1 does not raise invalidity, the LD with respect to him rules on the basis that the patent is valid.
♦ LD grants injunction against defendants in main proceedings after is has found infringements of LED’s used in mobile phones and rejected the invalidity counterclaim by defendant 2.
♦ LD finds the injunction proportionate and does not accept the argument of the defendants (traders in different mobile phones) that the LED is only a very small part of the value of the phone. The LD states that the injunction will only have impact on certain mobile phones in other words the traders can continue trading in mobile phones. On the other hand, the patentee is entitled to effective enforcement of his patent.
♦ LD refuses also to order that the patentee puts up a bond. The amount of security demanded (10 times the value of the litigation) was also considered not proportionate.
11 October 2024
Local Division Munich, I-Mop GmbH vs Arcora
Default judgment
UPC_CFI_193/2024, ORD_47439/2024
The statement of claim is served on Arcora (a German company). Although Arcora has appointed a representative it does not file an answer.
The JR indicates that a judgment in default may be granted but informs claimant that its statement of claim not fully justifies the judgment he asks for. After the claimant changes his claim and the defendant again does not react a default judgment is entered.
11 October 2024
Düsseldorf Local Division, Truma Gerätetechnik vs CAN Srl Airxcel Europe
Extension of term
UPC_CFI_512/2024, ORD_55992/2024
Request for extension of term (9.3(a) RoP)
JR:
In view of the aim of the RoP to have proceedings carried out as quickly as possible the possibility to extend a term should be reserved for reasoned exceptional circumstances.
The argument that the service during an exhibition was invalid is no reason to extend the term for 19.1 RoP and/or the defense/counterclaim.
11 October 2024
Paris Local Division, Abbott vs Dexcom
Change of claim (263 RoP)
UPC_CFI_395/2023, ORD_53788/2024
Abbott requests during the interim conference and one month before the oral hearing to amend its defence with a new version of its product which would be relevant for the infringement discussion.
The JR sets out the conditions for granting such request and decides:
1. Abbott knew earlier about the new version of this product, but it was justified not to disclose this until the public launch in order not to alert the competition.
2. Its request would unreasonably hinder the claimant which would be confronted with a different new app version which would require analysis of the new features.
Request dismissed.
The JR indicates that Abbott can start a declaratory non infringement action or at the time of the execution of an infringement decision prove that its product does not infringe.
– All comments above are Prof. Hoyng‘s personal opinions –
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