Abbott v Sinocare & Anor (UPC_CFI_624/2025)
Decision date:
17 October 2025
Osborne Clarke summary
- Abbott is a leading provider of continuous glucose monitoring (CGM) devices. In June 2025, it applied for provisional measures (including a preliminary injunction) against two companies – China-based manufacturer of CGM systems, including the GlucoMen iCan, Sinocare, and Sinocare's Italy-based exclusive European distributor, Menarini.
- Abbott claimed that Sinocare and Menarini individually and jointly (directly or indirectly) infringed its patent with unitary effect (EP 633) relating to analyte sensor assemblies. Sinocare and Menarini were given the opportunity to object to the application and in doing so asserted that they did not infringe the patent because it did not employ certain features of the claim in the GlucoMen iCan and that the patent was more likely than not invalid due to lack of novelty and/or inventive step and because the subclaims add matter and insufficiently disclosed the invention.
- Firstly, The Hague LD held that it had both competence and jurisdiction to hear the claim. Regarding competence, Abbott was held to have provided evidence of alleged infringement within the UPCA territory by Menarini, including in the Netherlands, which satisfied the court's competence requirements.
- The jurisdiction of the court was contested with respect to Sinocare due to it not being domiciled in the EU. It also claimed that (threatened) infringement by Sinocare in the UPCA territory had not been substantiated. The court rejected these arguments, noting that it was undisputed that Sinocare was the manufacturer of the GlucoMen iCan and that Sinocare and Menarini had announced that they would cooperate in bringing the device into the European market. The court noted that this was at least combined/joint threatened infringement in the UPCA territory. Additionally, as the case concerned the alleged (threatened) infringement of the same patent in the same territory by the same attacked embodiment, Menarini could act as an anchor defendant under Article 7(2) of the recast Brussels Regulation.
- Next, the court considered the urgency of Abbott's application, finding that Abbott had made no unreasonable delay in seeking provisional measures. It had filed its application approximately one month after publication of the grant of the patent. Abbott was also found to have sufficiently argued that the measures were objectively necessary/urgent to stop (imminent) infringement.
- The Hague LD also held that it was more likely than not that Abbott's patent would be held valid and the invalidity defences raised by Sinocare and Menarini were "not expected to affect the validity of the patent in the main proceedings".
- Based on the the Hague LD's wider interpretation of the claim, Sinocare and Menarini's argument that its product did not employ certain features of the claim did not hold true. The court found that on the correct claim interpretation, the features were present in the GlucoMen iCan and therefore it was more likely that not that Sinocare and Menarini infringed the patent.
- In view of the likelihood of validity and infringement, Abbott's requested measures were granted so far as necessary and proportionate. The Hague LD granted the preliminary injunction covering the whole UPCA territory, as requested. Necessity was made out due to the risk of lost sales and price erosion. The court also ordered limited provision of information relating to the infringement and delivery up of any GlucoMen iCan products held or owned by Sinocare and Menarini in the UPCA territory. The court did not order Abbott's request for a declaration that the GlucoMen iCan is considered "goods suspected of infringing an intellectual property right" as such a declaration is not possible as a provisional measure. The order was made immediately enforceable.
- Abbott was not ordered to pay any security for costs because Sinocare and Menarini "did not argue let alone demonstrate" that Abbott would not or could not pay damages if the injunction was reversed on appeal or in the proceedings on the merits.
Issue
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