DexCom v Abbott Laboratories (CoA, App_68655/2024, 24 January 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By an order of 24 January 2025 (UPC_CoA_505/2024), the Court of Appeal permitted, on appeal, the withdrawal of DexCom’s infringement action (UPC_CFI_230/2023, EP 3 435 866) and of the Abbott companies’ counterclaims for revocation, declared the proceedings closed and ordered a refund of 60% of the appeal fees. The Paris Local Division had revoked the patent in its entirety on 4 July 2024. Closing the proceedings renders that decision ineffective, a point of direct use to parties settling on appeal.

Question

Is a mutual withdrawal still possible on appeal after the patent has been revoked, and what becomes of the impugned decision and the amendment requests?

Decision

Withdrawal remains admissible as long as there is no final decision, which is the case while the appeal is pending, and the Court of Appeal rules on admissibility (paragraphs 9 and 10). With the parties’ consent, neither has a legitimate interest in a decision on the merits (paragraph 10). Closing the proceedings renders the impugned decision ineffective (paragraph 11). The amendment requests, being ancillary, lapse with the withdrawal of the counterclaim, without a separate order (paragraph 12). As both parties waived a costs decision, none was given (paragraph 13). The withdrawal having occurred before the written procedure on appeal closed, 60% of the fees were refunded (Rule 370.9(b)(i), paragraph 14).

Key points for practice

• A mutual withdrawal on appeal renders the first-instance revocation decision ineffective.
• Practical point: withdrawing before the written procedure on appeal closes secures a 60% refund of the appeal fees.

Provisions applied

Rules of Procedure

Rules 265 and 370.9(b)(i)

Case law cited

Court of Appeal, 15 January 2025, Avago v Tesla (UPC_CoA_637/2024, UPC_CoA_638/2024 and UPC_CoA_639/2024), Court of Appeal, 15 January 2025, Avago Technologies International Sales v Tesla Germany and Tesla Manufacturing Brandenburg (UPC_CoA_629/2024, UPC_CoA_631/2024 and UPC_CoA_632/2024)

Related decisions

• DexCom v Abbott, 4 July 2024, first-instance decision rendered ineffective.

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.