EOFLOW v Insulet (CFI, 28 May 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By decision of 22 July 2025, the Milan Central Division dismissed by default EOFLOW’s revocation action against EP 4 201 327 (unitary effect), EOFLOW having failed to provide the EUR 500,000 security ordered on 11 April 2025, and then, after examining the merits, upheld Insulet’s infringement counterclaim against the EOPatch insulin pump (GlucoMen Day Pump) (UPC_CFI_597/2024).

The decision clarifies the reach of a decision by default: a defaulting revocation claimant loses its action, but the proprietor can neither lose its patent nor obtain an infringement ruling by reason of the default alone.

Facts and procedure

Insulet sought provisional measures against the EOPatch in July 2024, the Central Division refused them on 22 November 2024, and the Court of Appeal reversed that refusal on 30 April 2025. EOFLOW brought the revocation action on 14 October 2024, on 10 December 2024 Insulet filed a defence, applications to amend and an infringement counterclaim. Ordered on 11 April 2025 to provide security, EOFLOW neither paid nor appealed and announced at the interim conference of 13 May 2025 that it would not pay. Insulet then requested a decision by default.

The applicable law

The division applied Rule 355: a decision by default requires failure to comply with an obligation imposed by the Court and a request by the other party, and the facts must justify it (Rule 355.2). It linked security to the rationale of Art. 69(4) UPCA, which protects defendants. On the merits, it applied Art. 69 EPC and its Protocol, then Arts 63, 64, 67 and 68 UPCA, Rule 119 and Art. 13 of Directive 2004/48. Costs were capped under Art. 1(3) of the Administrative Committee decision.

Question

Does failure to provide security lead to dismissal of the revocation action and an automatic finding of infringement, and, on the merits, does the EOPatch fall within claim 1 of EP 4 201 327?

Decision

The revocation action was dismissed by default, EOFLOW having knowingly evaded an obligation imposed by the Court without appealing. The applications to amend did not need to be addressed. In the division’s words, the sanction under Rule 355.2 is losing the case, not losing the patent. The counterclaim was therefore not decided by default: the division assessed its merits, summarily where appropriate, after a hearing.

On the merits, the « transcutaneous access tool » includes the needle or trocar, the « nut » is a partially threaded tube nut, the « clutch » includes the latch, and the requirement that the nut « pass through » the clutch is assessed in the assembled state, during filling. All features were found. The division granted an injunction for the States in which the Agreement was in force on 19 June 2024, with a penalty of EUR 30,000 per day, together with recall, removal, destruction and information (penalty of EUR 15,000 per day), awarded EUR 230,000 in interim damages (69,723 units sold) and left the assessment of damages to a later stage. The exhaustion defence, not individualised, was rejected.

On costs, a single ceiling of EUR 600,000 applies across the parallel provisional measures and merits proceedings. The EUR 600,000 already paid by Menarini to Insulet was credited, so that EOFLOW owes EUR 162,292 for the provisional measures, plus EUR 200,000 on account for the merits. Leave to appeal was granted for the orders under Arts 63 and 64.

Key points for practice

• Failure to provide security costs the claimant its revocation action, but the infringement counterclaim is still examined on the merits.
• Choosing a standalone revocation action, when validity could have been raised in defence, exposes the claimant to security for costs and its consequences.
• Sums paid by a third party for costs in parallel proceedings are credited against recoverable costs, to avoid double recovery.
• Practical point: a defendant should not rely on its opponent’s default to obtain an infringement ruling, the counterclaim must be substantiated as in contested proceedings.

Provisions applied

Agreement on a Unified Patent Court

Arts 29, 63, 64, 65, 67, 68, 69, 70 and 82(4)

Rules of Procedure

Rules 118, 119, 125, 150, 158, 171, 220, 221, 354, 355 and 356

European Patent Convention

Arts 54, 56, 69, 138(1)(a) and Protocol on the Interpretation of Article 69

Directive 2004/48/EC

Art. 13

Other instruments

Regulation (EU) No 1257/2012, Art. 6, Administrative Committee decision on ceilings for recoverable costs, Art. 1(3)

Case law cited

NanoString v President and Fellows of Harvard College, Court of Appeal, 11 March 2024, Fives ECL v REEL, Court of Appeal, 16 January 2025, Edwards Lifesciences v Meril, Munich Local Division, 10 January 2025, Hanshow v VusionGroup, Court of Appeal, 13 May and 29 July 2024 (UPC_CoA_1/2024), Court of Appeal, 20 June 2025 (UPC_CoA_393/2025), Court of Appeal (UPC_CoA_768/2024), Ortovox v Mammut, Düsseldorf Local Division, 22 April 2025, other first instance decisions cited by number

Related decisions

• Insulet v EOFLOW, 22 November 2024, Central Division order refusing provisional measures.
• EOFLOW v Insulet, 11 April 2025, order of the same date as the security order referred to in the decision.

Prepared by Dhenne Avocats from the official decision, consulted on 10 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.