EOFLOW v Insulet (CFI, 22 July 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In a decision of 22 July 2025 (UPC_CFI_597/2024), given both on EOFLOW’s revocation action and on Insulet’s counterclaim for infringement, the Milan Central Division dismissed by default the revocation action against unitary patent EP 4 201 327, EOFLOW having refused to provide the EUR 500,000 security ordered, and then held that the EOPatch insulin pump (GlucoMen Day Pump) infringes claim 1. It granted an injunction backed by penalty payments, corrective measures, an information order and an interim award of EUR 230,000 in damages. It matters in practice for the consequence of failing to provide security and for the treatment of costs where the proprietor ran parallel proceedings against the manufacturer and the distributor.

Facts and procedure

On 3 July 2024 Insulet applied for provisional measures against EOFLOW before the Central Division and against its distributor Menarini before the Milan Local Division. EOFLOW brought its revocation action on 14 October 2024. The application for provisional measures, refused on 22 November 2024, was granted by the Court of Appeal on 30 April 2025. On 10 December 2024 Insulet filed its defence, applications to amend and its counterclaim. By order of 11 April 2025 EOFLOW was required to provide EUR 500,000 in security, the deadline later moved to 13 May 2025, at the interim conference that day EOFLOW stated that it would not pay, and Insulet requested a decision by default.

The applicable law

Rule 355 allows a decision by default where a party fails to comply with an order. Rule 355.2 requires that the facts put forward justify the remedy. Article 69(4) UPCA allows security for costs to be ordered. Corrective measures and the information order rest on Articles 64 and 67 UPCA, the interim award of damages on Rule 119, and the ceiling on recoverable costs on Rule 152.2.

Question

Does the revocation claimant’s refusal to provide the security ordered justify dismissing its action by default, and does the EOPatch pump fall within claim 1, in particular as regards the nut and the clutch of the drive mechanism?

Decision

The conditions for a decision by default were met: failure to comply with a validly issued order and a request by the other party. Dismissal served the purpose of Article 69(4), which protects a defendant against a claimant lacking the means to cover its costs, as the Court of Appeal noted on 20 June 2025 (UPC_CoA_393/2025). The sanction under Rule 355.2 is losing the case, not losing the patent. The applications to amend therefore did not need to be decided. On the counterclaim, a decision by default would have served no purpose, since the merits still had to be assessed, and the Court proceeded to a hearing. It construed the nut as a partially threaded tube nut, relying on dependent claim 2, and read “pass through” dynamically. The description and drawings act as the patent’s own lexicon without confining the claims to the preferred embodiment. All features of claim 1 were found. The Menarini settlement, filed late without leave, was disregarded. Exhaustion failed because consent was not tied to individual products. The infringement was held serious given its scale, justifying all corrective measures requested with no grace period. Penalty payments were set at EUR 30,000 per day for the injunction and EUR 15,000 for the other orders. The EUR 230,000 was fixed on an equitable basis, by reference to 69,723 units sold and a profit of at least EUR 3 per unit. The EUR 600,000 ceiling applies per instance whatever the number of parties or patents. The costs of two parallel legal teams were not recoverable and Menarini’s EUR 600,000 payment was credited, leaving EOFLOW liable for EUR 162,292 for the provisional measures proceedings, plus an interim EUR 200,000 towards the costs on the merits.

Key points for practice

• A revocation claimant that fails to provide the security ordered risks having its action dismissed by default, without any review of validity.
• A decision by default requires that the facts on file justify the remedy. It does not mechanically punish procedural conduct.
• A proprietor that runs parallel proceedings against manufacturer and distributor will not recover its costs twice, the ceiling applying per instance.
• Practical point: a settlement with a distributor must be filed in time, with the products it covers identified, if it is to support an exhaustion defence.

Provisions applied

Agreement on a Unified Patent Court

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

Rules of Procedure

Rules 118, 119, 150, 151, 152, 157, 158, 171, 220, 221, 263, 350, 354, 355 and 356

European Patent Convention

Arts 54, 56, 69 and 138(1)

Directive 2004/48/EC

Art. 13

Case law cited

Court of Appeal, 20 June 2025, UPC_CoA_393/2025, Insulet v EOFlow, Court of Appeal, 30 April 2025, UPC_CoA_768/2024, Hanshow v VusionGroup, Court of Appeal, 29 July 2024, Meril v Edwards, Munich Local Division, 10 January 2025.

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.