In this order, the Court of Appeal set aside the refusal of a preliminary injunction by the Local Division The Hague and granted provisional measures.
Beyond its statements on inventive step and admissibility of cross-appeals, the decision is particularly instructive on the requirement of necessity under Art. 62 UPCA and Rules 206 and 211 RoP.
In the context of validity, the Court stated that features cannot be excluded from the assessment of inventive step merely because they are, in isolation, non-technical.
It confirmed that the invention must be assessed as a whole and that user interface features may contribute to the technical character if they produce a technical effect, such as improved human–machine interaction.
The integration of event data icons into a timeline graph, enabling real-time correlation with glucose levels, was considered to contribute to such a technical effect.
The Court of Appeal reiterated that necessity requires a forward-looking assessment of whether proceedings on the merits can be awaited. This depends not only on irreparable harm, which is not a strict requirement, but also on competitive dynamics and the risk of market disruption.
In the present case, the Court considered the following factors decisive.
First, the parties were direct competitors in a highly concentrated CGM market. The claimant held a dominant market position, while the defendants were entering the market with a competing product. The Court considered that even initial market entry by a new competitor may trigger long-term effects, in particular price erosion and loss of market share.
Further, the Court emphasised the structural effects of market entry. A shift from a single-supplier market to a multi-supplier market may permanently alter pricing and purchasing behaviour. This effect, rather than immediate financial loss, justified the need for provisional measures.
The Court concluded that the balance of interests favoured immediate intervention and that provisional measures were necessary to preserve the status quo pending the main proceedings.
The Court declared the cross-appeal inadmissible.
It held that a party may only appeal if adversely affected by the outcome of the decision. A cross-appeal cannot be used to challenge reasoning where the operative part of the decision is favourable.
Since the defendants had succeeded at first instance, their attempt to challenge the finding on urgency was inadmissible.
The Court ultimately granted a preliminary injunction covering indirect infringement, limited to the UPC territory (excluding Romania), and imposed penalty payments for non-compliance.
The decision reinforces that necessity under the UPC framework is closely linked to market dynamics and competitive effects, rather than requiring strict proof of irreparable harm. It also confirms that careful preparation over several weeks is compatible with urgency, provided the applicant acts diligently once sufficient information is available.
