EPLAW PATENT BLOG

UPC – Dexcom v. Abbott Laboratories et al.

Posted: February 9th, 2024

Dexcom, Inc. v. Abbott Laboratories, Abbott Diabetes Care inc, Abbott France, Abbott NV/SA, Abbott B.V, Abbott S.r.l, Abbott Scandinavia Aktiebolag, Abbott GmbH, Abbott Diagnostics GmbH, Abbott Logistics B.V, Court of First Instance – Paris (FR) Local Division, 30 January 2024, Case no. UPC_CFI_230/2023

Review by the panel pursuant to R. 333 RoP. Request to harmonise the maximum fine amount in case of a breach of confidentiality between parallel proceedings concerning the same protected confidential information. The request to review the Confidentiality order (point 6) of 19 November 2023 is dismissed. No grounds to bind the Paris Local Division, in case of breach and as requested by Dexcom, in cases where the Munich Local Division has already imposed a fine.

Grounds

Concerning the need to harmonise the two similar orders:

“The Court notes that, although the UPC Paris LD order of 19 November 2023 and the UPC Munich LD order of 31 December 2023 relate to the same protected confidential information, the two orders were ruled by two divisions in two different proceedings concerning different patents. In such circumstances, one division is not bound by a decision in another division despite belonging to the same unified court.

“Therefore, the alleged need to harmonise the amount of the fine as requested by the Applicant is not justified.

Concerning the appropriate maximum amount of the fine:

“In principle, the judge rapporteur has to set an appropriate fine limit that is proportionate and sufficiently dissuasive to ensure that the parties comply with his/her decision.

“In the contested order, the judge rapporteur considered the amount of the fine requested in the event of a breach of the confidentiality arrangements, i.e. up to EUR 250 000 for each individual case of breach, to be disproportionate, given that a significant part of the information had already been disclosed in the previous national proceedings in Germany.

“The Court notes that the Judge-Rapporteur was justified in considering that part of the confidential information had already been disclosed without a confidentiality restriction and that a lower amount of the fine would sufficiently protect the legitimate interests of the parties in the event of a breach.

“Therefore, a maximum fine amount of EUR 50,000 in case of breach is appropriate and proportionate in the contested confidentiality order and there is no need to set a higher maximum amount for the fine.

Concerning the Dexcom’s amendment:

“In order to avoid the potential risk of a double fine, Dexcom requests a specific mention in the revised order as follows: “In the event of a breach of the above orders, the Court may, upon request of the Applicants, impose a fine of up to € 50.000 for each single case of a breach, unless a fine has already been imposed in accordance with the order of 31 December 2023 taken by the Munich Local Division of the UPC pursuant to R. 262A RoP in the proceedings UPC CFI 233/2023”.

“However, it will be at the Court’s discretion, at the time of any breach, to decide on the appropriate amount of a fine to be paid, taking into account all elements in concreto, including any previous fine decided by the UPC Munich Local Division for the same breach.

“There is no grounds to bind the Paris Local Division, in case of breach and as requested by Dexcom, in cases where the Munich Local Division has already imposed a fine.

“Therefore, a need for such an amendment of the confidentiality order is not justified”

The order can be read here.

[Further headnote follows]

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