DexCom v Abbott Laboratories (CFI, 21 November 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 21 November 2024 (UPC_CFI_499/2023, ACT_596853/2023, CC_33181/2024, ORD_59318/2024), the Düsseldorf Local Division (Judges Thomas, rapporteur, Thom and Rinkinen), hearing DexCom’s action for infringement of EP 4 026 488 against Abbott Laboratories and twelve other Abbott companies, met by a counterclaim for revocation, decided at this stage, with the parties’ consent, to hear both the infringement action and the counterclaim. The judge-rapporteur is to ask the President of the Court of First Instance to allocate a technically qualified judge. The interest of the order lies in its timing: the Art. 33(3) UPCA decision is taken before the written procedure closes, for reasons of court organisation.

Question

May the panel decide on the options under Art. 33(3) UPCA, where a counterclaim for revocation has been filed, before the end of the written procedure?

Decision

Rule 37.1 makes that choice a matter for the panel, and Rule 37.2 allows it to be taken by order before the end of the written procedure, after hearing the parties. The panel opted to hear both claims under Art. 33(3)(a) for reasons of efficiency: the same judges will decide validity and infringement on a uniform interpretation of the patent. The early decision is justified by the state of the Court, still under construction, with some members sitting part-time or case by case: allocating the technically qualified judge early lets that judge take part in case management and avoids scheduling delays. The decision also sets the framework of the proceedings for the parties and the Court.

Key points for practice

• Practical point: with the parties’ consent, the Art. 33(3) decision can be taken before the written procedure closes, securing the early allocation of a technically qualified judge.

Provisions applied

Agreement on a Unified Patent Court

Art. 33(3)(a)

Rules of Procedure

Rules 37.1 and 37.2

Case law cited

No UPC decision is cited.

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.