Abbott Diabetes Care v Sibio Technology (CFI, UPC_CFI_130/2024, 19 June 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By an order of 19 June 2024 (UPC_CFI_130/2024, ACT_14944/2024, ORD_30434/2024), The Hague Local Division granted Abbott Diabetes Care Inc.’s application for provisional measures based on EP 2 713 879 and issued an injunction against Sibio Technology Limited and Umedwings Netherlands B.V. covering the GS1 continuous glucose monitoring device in Germany, France, the Netherlands and Ireland.

The order is of interest for its treatment of a unilateral cease-and-desist undertaking: a declaration with no irrevocable penalty clause, and breached after it was given, neither renders the application devoid of purpose nor bars the injunction. It also shows that an argument first raised at the oral hearing may be rejected as late.

Facts and procedure

Abbott owns EP 2 713 879, which covers an apparatus comprising an on-body device, an applicator and a container for continuous glucose monitoring. Independent claim 1 and dependent claim 4 were asserted. A Chinese company of the Sibio group had filed a protective letter on 29 September 2023. Abbott filed its application on 20 March 2024.

In their objection of 23 April 2024 the defendants challenged neither validity, nor infringement, nor urgency, nor competence. Instead they gave a unilateral cease-and-desist declaration, amended on 15 May 2024, and argued that the application had become devoid of purpose (Rule 360 RoP). Abbott refused the declaration and alleged that it had been breached. The hearing took place on 22 May 2024. The same division ruled on the same day, between the same parties, on a second patent.

The applicable law

The preliminary injunction rests on Arts. 62 and 63 UPCA and Rule 211 RoP, delivery up to a bailiff falls under Art. 62(3) UPCA, and penalty payments under Art. 63(2) UPCA and Rule 354.3 RoP. Competence for Ireland, which was not disputed, was based on Art. 31 UPCA read with Regulation 1215/2012. Costs follow Art. 69 UPCA.

Question

Does a unilateral cease-and-desist declaration given by the defendants render the application for provisional measures devoid of purpose, or at least remove any interest in the injunction sought?

Decision

No. Abbott showed that the defendants had not fully complied with their declaration: after it was given, GS1 devices were ordered and delivered in Germany and the Netherlands on 3 and 4 May 2024, and another could still be bought on 17 May 2024 through the website sibionicsshop.com. Moreover, the declaration contained no irrevocable penalty clause, the amount of the penalty being left to Abbott to determine. The panel therefore saw no legitimate interest on the defendants’ part in opposing the injunction, and the application was not devoid of purpose. The argument that Abbott had known of the GS1 since October 2023, first raised at the hearing, was rejected as inconclusive, lacking substance and inexcusably late in breach of the principles of a fair trial.

The order prohibits, with immediate effect, making, offering, placing on the market, importing and storing the GS1 in relation to claims 1 or 4 in the four states, orders delivery up of stock to a bailiff appointed by Abbott within one week, and provides for penalty payments of up to EUR 10,000 per violation and EUR 100,000 per day. The injunction is confined to the GS1, as no threat was shown for other products. The request for information was refused. No security was ordered, since no damage from enforcement could be envisaged. The defendants bear the costs, with an interim award of EUR 11,000, neither the absence of a warning letter nor Art. 69(3) UPCA justifying a different outcome. The Rule 213 RoP period was set at 30 calendar days from service.

Key points for practice

• A unilateral cease-and-desist undertaking only defeats an application for provisional measures if it is honoured and backed by an effective sanction. A penalty left for the patentee to fix is not enough.
• Since validity and infringement were not contested, the panel did not examine the merits and focused on the interest in the measures and their terms.
• The absence of a warning letter does not relieve the losing party of the costs.
• Practical point: a defendant seeking to avoid an injunction through a cease-and-desist undertaking should attach an irrevocable penalty clause and ensure immediate compliance across all sales channels, online included.

Provisions applied

Agreement on a Unified Patent Court

Arts. 25, 31, 33, 62, 63, 69 and 82(1)

Rules of Procedure

Rules 206, 211, 213, 354.3 and 360

Regulation (EU) No 1215/2012

Arts. 26, 35 and 71b

Related decisions

• Abbott Diabetes Care v Sibio Technology, 19 June 2024, order issued the same day on EP 3 831 283, refusing provisional measures on the ground of likely invalidity (UPC_CFI_131/2024).

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.