Dexcom International v Abbott Diabetes Care (CFI, 17 September 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By a procedural order of 17 September 2024 (ACT_586899/2023, ORD_52140/2024), the judge-rapporteur of The Hague Local Division (E. Brinkman) granted Dexcom leave to amend its counterclaim for revocation of EP 4 070 727 B1 by adding a request for a declaration of non-infringement, in the infringement action brought by Abbott Diabetes Care Inc. against Dexcom Inc. and Dexcom International Limited. The order accepts that the opponent’s partial withdrawal justifies a late amendment under Rule 263.

Question

After the patentee’s partial withdrawal, may the defendant add to its counterclaim a request for a declaration of non-infringement covering the products no longer targeted by the action?

Decision

Abbott withdrew its claims against the G7 System used with the G7 Receiver and maintained them only for the G7 System used with the G7 App, Dexcom sought legal certainty through a declaration of non-infringement for the former configuration. The judge-rapporteur held that Dexcom could not reasonably have made the amendment earlier: it announced it in its reply to the defence to the counterclaim, its first filing after the withdrawal, and the mere possibility of a withdrawal did not oblige it to anticipate one, since the statement of claim expressly targeted the receiver. Whether Dexcom has a legal interest is for the panel. Abbott’s filing of its rejoinder on 22 August 2024 did not unreasonably hinder it, since it has 30 days to respond to the amended claim.

Key points for practice

• Practical point: a claimant’s partial withdrawal opens the way for the defendant to seek a declaration of non-infringement within its counterclaim, to be raised in the next written pleading.

Provisions applied

Rules of Procedure

Rule 263

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.