DexCom v Abbott (UPC_CFI_233/2023)
Decision date:
31 July 2024
Osborne Clarke summary
- Dexcom alleged that Abbott infringed its patent (EP 685) relating to glucose monitoring systems. Abbott did not dispute that its attacked products made use of the patent in issue; however, it contended that the patent lacked novelty or lacked inventive step.
- When first determining the person skilled in the art, the Munich LD left open the question of whether they should be defined as a single person or as a group of persons. In this case, the court held that the person must have knowledge in two fields: i) (physiological) analyte monitoring systems, and ii) knowledge in the art of designing portable electronic systems.
- In considering novelty, the Munich LD stated that the invention must be found "clearly integrally, directly and unambiguously in one single piece of prior art and in its existing form, it must be identical in its constitutive elements, in the same form, with the same arrangement and the same features". On this basis, the patent was not anticipated by the single piece of prior art considered.
- DexCom's patent was, however, revoked for lack of inventive step. It was determined that the prior art must first be of interest to a person skilled in the art who, at the priority date of the patent, was seeking to optimise upon the underlying technical problem. The Munich LD held that the underlying problem appeared to differ from the problem on which the EPO's Opposition Division based its decision. On the Munich LD's assessment, the prior art would have been of interest to the person skilled in the art and the invention disclosed in the patent would not have involved an inventive step over the prior art.
Issue
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