Caelus Lifesciences IP v Pendulum Therapeutics (CFI, UPC_CFI_1615/2026, 8 October 2026)

Dhenne Avocats · 1 November 2026

Our analysis

Summary

In an order of 8 October 2026 (UPC_CFI_1615/2026), the single judge of The Hague Local Division, sitting with the parties’ consent, grants Caelus Lifesciences IP’s application for provisional measures based on EP 2 753 187 B2, which protects Eubacterium hallii and/or Alcaligenes faecalis for use in preventing or treating insulin resistance. He enjoins Pendulum Therapeutics and iHerb Netherlands, in Belgium, Denmark, Germany, France, Italy, the Netherlands, Sweden and Switzerland, from marketing the probiotics Glucose Control and Metabolic Daily, with delivery up, information, publication on their websites and penalty payments, and awards an interim costs payment of EUR 112,000.

Facts and procedure

Caelus is co-proprietor, with Stichting Amsterdam UMC, of EP 2 753 187 B2, maintained in amended form after EPO opposition and appeal (B2 specification published on 6 August 2025). The patent had been opted out; the opt-out was withdrawn on 11 May 2026, the date of the application for provisional measures.

Pendulum Therapeutics, based in San Francisco, markets the probiotics Glucose Control and Metabolic Daily; iHerb Netherlands is named by Pendulum as a retailer. Caelus obtained samples of Glucose Control delivered in the Netherlands through another retailer and, via iHerb’s Swiss website, in Switzerland. The application was withdrawn against defendants 2, 4 and 5 on 22 July 2026. The oral hearing took place on 27 August 2026.

Question

Are the Rule 211 RoP conditions for provisional measures met against a US manufacturer and a Dutch retailer, including for Switzerland, and does a second medical use claim to E. hallii cover products containing other strains and other bacteria?

Decision

Jurisdiction: The Hague Local Division’s competence follows from iHerb Netherlands’ domicile and the alleged acts in the Netherlands. For US-based Pendulum, jurisdiction follows from the harmful event occurring or likely to occur in the UPC territory: by directing customers to official retailers, Pendulum offers the products. For Switzerland, the risk of irreconcilable judgments allows iHerb Netherlands to serve as anchor defendant; the Swiss website’s terms of use name iHerb Netherlands as a contracting party.

Urgency: the proprietor acted without undue delay after learning of the infringement on 12 March 2026. Mere availability of a product on the market does not amount to knowledge, as UPC case law imposes no general duty to monitor the market (Court of Appeal, Sophia Genetics v Guardant Health).

Claim construction: the claim is not limited to strain L2-7 used in Example 3; E. hallii is to be read, in current terminology, as Anaerobutyricum hallii, and the bacterium need not produce the therapeutic effect on its own.

Validity: in view, in particular, of the EPO Board of Appeal’s findings, the defendants have not shown that the patent is more likely than not invalid for insufficiency or lack of inventive step.

Infringement: the presence of hallii in both products is undisputed, and Pendulum’s marketing materials highlight the effect on sugar metabolism and the contribution of hallii; the defendants do not claim that the products lack this effect.

Proportionality: the injunction is granted for the UPC territory and Switzerland; Caelus, which is preparing its own EU launch and following the authorisation route under Regulation (EU) 2015/2283 on novel foods, would suffer irreparable harm given the defendants’ first-mover position. The request for EUR 750,000 security is rejected (Court of Appeal, Abbott v Sibio). Penalty payments are capped at EUR 10 million; the value of the dispute is set at EUR 750,000.

Key points for practice

• An anchor defendant domiciled in a Contracting Member State may allow provisional measures to be extended to a non-UPC EPC state such as Switzerland.
• Urgency runs from actual knowledge of the infringement, not from the mere presence of the product on the market.
• A patent’s examples do not limit the scope of a claim drafted in terms of a bacterial species.
• For a use claim, the defendant’s promotional statements on the therapeutic effect carry significant weight in assessing infringement.

Provisions applied

UPC Agreement

Articles 25, 33, 62, 67 and 80

Rules of Procedure

Rules 211, 213.1 and 354.3

EPC

Articles 56 and 83

Regulation (EU) No 1215/2012 (Brussels I recast)

Articles 8(1) and 71b

Case law cited

Philips v Belkin (Court of Appeal, 3 October 2025); Sinocare and Menarini v Abbott (Court of Appeal, UPC_CoA_899/2025, 30 March 2026); Guardant v Sophia Genetics (Court of Appeal, UPC_CoA_19/2026, 2 July 2026); Kinexon v Ballinno (Paris Central Division, UPC_CFI_230/2024); Amgen v Sanofi (Court of Appeal, UPC_CoA_528/2024 and UPC_CoA_529/2024, 25 November 2025); Abbott v Sibio (Court of Appeal, UPC_CoA_382/2024, 14 February 2025).

Related decisions

• The Hague Local Division, 20 October 2026, UPC_CFI_1615/2026, Caelus Lifesciences IP v Pendulum Therapeutics: rectification of the order.

Prepared by Dhenne Avocats from the official decision, consulted on 1 November 2026. The database is updated every week, on Friday. Only the official text is authoritative.