Abbott Diabetes Care v Sibio Technology (CFI, UPC_CFI_131/2024, 19 June 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By an order of 19 June 2024 (UPC_CFI_131/2024, ACT_14945/2024, ORD_30431/2024), The Hague Local Division dismissed Abbott Diabetes Care Inc.’s application for provisional measures based on EP 3 831 283 against Sibio Technology Limited and Umedwings Netherlands B.V. in respect of the GS1 glucose monitoring device. The panel held that claim 1 was more likely than not to be invalid for added matter, which ruled out the required degree of certainty.

The order matters for two reasons: it applies the EPO « gold standard » in summary proceedings, in line with the case law of the Boards of Appeal, and it confirms that a claim redrafted in a divisional must find in the original application a pointer to the selected combination of features.

Facts and procedure

Abbott, proprietor of EP 3 831 283 (a second-generation divisional deriving from WO 2013/090215, priority 11 December 2011, grant published 26 April 2023, no opposition), applied on 20 March 2024 for a preliminary injunction and ancillary measures (information, costs, seizure) against the GS1. It relied on claim 1 and dependent claims 6, 7, 9, 11, 12, 13, 14 and 26. The patent concerns an on-body device for in vivo glucose monitoring whose base has, in its bottom exterior surface, a recess receiving the sensor’s connector support.

The defendants disputed competence for Ireland, infringement, validity (added matter, novelty, inventive step), urgency and interest, and sought security. Since Abbott no longer sought relief for Ireland, the panel did not need to decide that point (paragraph 1) and held itself competent otherwise under Art. 33 UPCA. The hearing took place on 22 May 2024.

The applicable law

In summary proceedings the court must be satisfied with a sufficient degree of certainty that the applicant is entitled to commence proceedings and that the patent is infringed (Art. 62 UPCA, Rule 211.2 RoP). The panel held that this degree of certainty is lacking where the patent is more likely than not to be invalid (paragraph 2.1). The burden of proving invalidity lies on the defendant (paragraphs 2.2 and 2.3). Added matter is assessed under Arts. 76(1) and 123(2) EPC by asking what the skilled person derives directly and unambiguously from the application as filed (paragraphs 3.4 and 3.5).

Question

Does a claim that omits the elastomeric seal in the recess of the base, present in the embodiments of the original application, amount to an unallowable intermediate generalisation making invalidity more likely than not?

Decision

Yes. The original application is not a reservoir of features from which the proprietor may freely pick: there must be a pointer to the selected combination, which called for careful scrutiny since claim 1 had been redrafted from scratch (paragraphs 4 to 4.4). The seal is not part of claim 1 as granted, which the panel described as an intermediate generalisation (paragraph 5.2). That is allowable only if it is clearly established that there is no structural and functional relationship between the omitted feature and the rest of the claim. Abbott failed to show this, the seal appearing important for a moisture-tight connection (paragraphs 5.3 and 5.4).

The other bases relied on were rejected: Figs. 34A to 34D show at most another type of seal (paragraphs 6 and 6.1), and Fig. 29 is a separate embodiment, without any pointer, in which the connector is inserted from above (paragraphs 7 and 8). The remaining issues did not need to be addressed (paragraph 9). The application was dismissed, Abbott was ordered to bear the defendants’ reasonable and proportionate costs up to the applicable ceiling, and the value of the dispute was set at EUR 4,000,000 (paragraph 10).

Key points for practice

• The order applies, in summary proceedings, the EPO test of what is directly and unambiguously derivable from the application as filed, with reference to Boards of Appeal case law.
• A proprietor omitting a feature of an embodiment must show that there is no structural and functional link. Silence in an isolated passage does not show that the feature is optional.
• Practical point: for a redrafted divisional, the proprietor should identify in the application itself the pointer in the original filing to the claimed combination, failing which an added matter objection may be enough to defeat provisional measures.

Provisions applied

Agreement on a Unified Patent Court

Arts. 33, 62, 69 and 73

Rules of Procedure

Rules 118.5, 150.2, 206, 211 and 220.1

European Patent Convention

Art. 76(1), Art. 123(2)

Case law cited

10x Genomics v Nanostring, Court of Appeal, 26 February 2024 (UPC_CoA_335/2023)

Related decisions

• Abbott Diabetes Care v Sibio Technology, 19 June 2024, order issued the same day by the same division between the same parties on EP 2 713 879 (UPC_CFI_130/2024).

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.