Insulet v EOFLOW (CoA, UPC_CoA_768/2024, 1 May 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 30 April 2025 (UPC_CoA_768/2024, APL_64374/2024), the Court of Appeal sets aside the Milan Central Division’s order of 22 November 2024 and grants provisional measures against EOFlow, the Korean maker of the EOPatch and GlucoMen Day Pump insulin patch pumps, under Insulet’s EP 4 201 327. Where the first instance had found claim 1 likely to lack novelty, the Court, on its own construction of the claim, holds validity and infringement more likely than not. The order matters to practitioners for three reminders: claim construction is for the court, not the expert, a risk of continued infringement follows from past infringement absent an undertaking backed by a penalty clause, and partial success does not automatically lead to a proportionate split of costs.

Facts and procedure

EOFlow supplies the attacked devices to Menarini, its exclusive European distributor. After a warning letter of 21 June 2024 produced no cease-and-desist undertaking, Insulet applied for provisional measures on 3 July 2024. The Milan Central Division refused an ex parte order on 8 July 2024 and dismissed the application on 22 November 2024 in view of US 2009/0124994. A parallel order concerned Menarini before the Milan Local Division. Insulet settled with Menarini during the appeal. The appeal hearing took place on 10 March 2025.

The applicable law

The Court applies Art. 62 UPCA (provisional measures and balancing of interests), Art. 69 (costs), Art. 67 (right of information), Rules 211 and 213 RoP, and Art. 70(1) EPC.

Question

Properly construed, is claim 1 more likely than not valid over US 2009/0124994 and WO 2010/055504 and infringed by EOFlow’s pumps, and does the balance of interests justify an injunction?

Decision

Claim construction is a question of law: the court may not simply adopt a party expert’s view (paragraphs 35 to 38). The claim covers an assembled device in which the nut and leadscrew remain threadably engaged, including in the disengaged state, with a switchable clutch (paragraphs 39 to 54). So construed, it is not anticipated by US 2009/0124994 (paragraphs 59 to 73) or WO 2010/055504 (paragraphs 74 to 91), and does not appear obvious (paragraphs 92 to 95). Infringement is more likely than not (paragraphs 96 to 99). The lack of a cease-and-desist undertaking establishes the risk of continuation (paragraph 101). Direct competition, price erosion and the difficulty for patients of switching products outweigh EOFlow’s points on prior sales, the US proceedings and patient interests (paragraphs 102 to 123). The Court grants an injunction for seventeen states in which the patent has effect (paragraphs 124 to 127), without security from Insulet (paragraph 128), orders information on origin and distribution channels but not on quantities and prices (paragraphs 129 to 132), sets penalties of up to EUR 250,000 per infringement and EUR 100,000 per day (paragraph 133), and orders EOFlow to bear all costs at both instances (paragraphs 135 and 136). The value in dispute is set at EUR 2,500,000.

Key points for practice

• A party expert’s report does not bind the court on claim construction or on defining the skilled person (paragraphs 35 to 38).
• Refusing a cease-and-desist undertaking with a penalty clause suffices to show a risk of continued infringement (paragraph 101).
• Losing on a minor point that caused no extra costs does not deprive the winning party of full recovery of its costs (paragraphs 135 and 136).
• Practical point: in provisional proceedings the Court of Appeal construes the claim afresh, the first instance assessment of novelty may be revisited in full on appeal on the basis of that construction.

Provisions applied

Agreement on a Unified Patent Court

Arts 34, 62, 67 and 69

Rules of Procedure

Rules 211.1, 211.3, 213, 302.3 and 354.3

European Patent Convention

Art. 70

Case law cited

VusionGroup v Hanshow, Court of Appeal, 13 May 2024, Mammut v Ortovox, Court of Appeal, 25 September 2024, Abbott v Sibio, Court of Appeal, 14 February 2025, Biolitec v Light Guide, Court of Appeal, 24 February 2025, Sumi Agro v Syngenta, Court of Appeal, 3 March 2025

Related decisions

• Insulet v EOFlow, 22 November 2024, Milan Central Division order set aside on appeal.

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.