DexCom v Abbott Laboratories (CoA, ORD_3985/2025, 24 January 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In an order of 24 January 2025 (UPC_CoA_840/2024), the Court of Appeal permitted, on appeal, the withdrawal of DexCom’s infringement action and of the counterclaim for revocation brought by the Abbott companies, including Newyu, concerning EP 3 831 282. On 11 December 2024 the Paris Local Division had revoked the patent in its entirety and dismissed the infringement action. Closing the proceedings renders that decision ineffective: the first-instance revocation falls away with the proceedings.

Question

Can a withdrawal under Rule 265 take place on appeal, and what then becomes of the first-instance decision revoking the patent?

Decision

The application is admissible as long as there is no final decision, which is the case while an appeal is pending, and the Court of Appeal has jurisdiction to decide it, in line with its Avago v Tesla orders (paragraph 8). As both parties consent, neither has a legitimate interest in a decision (paragraph 9). Closing the proceedings renders the impugned order ineffective (paragraph 10). No costs decision is needed, since neither party sought one (paragraph 11), and 60% of the appeal fees are refunded to DexCom (Rule 370.9(b)(i), paragraph 12).

Key points for practice

• A patentee whose patent was revoked at first instance can, through mutual withdrawals on appeal, cause the revocation decision to fall away (paragraphs 9 and 10).
• Practical point: a defendant who withdraws its counterclaim on appeal gives up the benefit of the revocation obtained at first instance, which ceases to have effect.

Provisions applied

Rules of Procedure

Rules 265 and 370.9(b)(i)

Case law cited

Avago v Tesla Germany, Court of Appeal, 15 January 2025, UPC_CoA_629/2024, 631/2024 and 632/2024, Avago v Tesla, Court of Appeal, 15 January 2025, UPC_CoA_637/2024, 638/2024 and 639/2024.

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.