Irides: Weekly global patent litigation update

This edition features updates from: Canada, the Unified Patent Court (UPC) and Singapore.

The Irides Weekly Update is our round-up of patent litigation news highlights from around the world.
 

CANADA

Federal Court of Appeal Clarifies Claim Construction amid Double Patenting Row.

On 20 October 2025, the Federal Court of Appeal (FCA) handed down its decision in NCS v Kobold and Promac. NCS and Kobold are competitors in the oilfields services industry, and Promac is a supplier of tools and components for Kobold. NCS had initially sought to assert five of its patents against Kobold and Promac. Kobold counterclaimed asserting infringement of two of its patents: CA 2 856 830 (CA 830) and its divisional CA 3 027 571 (CA 571). At first instance, the Federal Court found CA 571 valid and infringed by NCS, while dismissing NCS’ infringement claims against Kobold and Promac.

CA 571 relates to a shock-absorbing system for a sleeve which slides over holes in the housing of an apparatus for injecting high-pressure fluids into oil and gas-bearing rocks, a process also known as “hydraulic fracturing” or “fracking”. CA 571 contemplated two possible designs for the apparatus: one where there is a ring which seals the gap between the sleeve and the housing – “the seal embodiment” – and one where the gap is left unsealed – “the gap embodiment”. The first-instance Judge had construed one of the claims, which was asserted for infringement, as encompassing only the gap embodiment, and a further claim dependent on it as including only the seal embodiment (which was not asserted). This notwithstanding that NCS argued that the feature of the dependent claim (the seal embodiment) should be read into the claim on which it was dependent. The FCA held this was incorrect – a claim cannot exclude matter which falls within the scope of one of its dependent claims. As such, the independent claim had to encompass both the gap and seal embodiments.

NCS argued that the first-instance Judge’s incorrect construction of the claims had led them to reach an incorrect conclusion on obviousness-type double patenting. The correctly-construed claims of CA 571, as now confirmed by the FCA, were alleged by NCS to have the same scope as certain claims of CA 830 (which Kobold had withdrawn from its infringement counterclaim). The FCA allowed the appeal on claim construction but did not make its own decision on validity – instead, the FCA remitted the issue to the lower court for re-determination, noting that the lower court was better placed to make a decision on the double patenting objection having heard the testimony and considered the evidence presented at trial.
 

UPC

The Hague Local Division issues Decision by Default Judgment granting Amycel a Permanent Injunction.
[UPC_CFI_499/2024]

On 21 October 2025, The Hague Local Division (LD) issued a decision by default judgment in an infringement action after the defendant’s failure to file its Statement of Defence by the deadline. The patent, EP 1 993 350 B2, concerns a particular strain of brown mushroom for commercial production. The same court had already issued a preliminary injunction against the defendant for its offer and sale of its Cayene mushroom strain in The Netherlands, Germany, France and Italy. In the merits action, the claimant (Amycel) sought inter alia to make the injunction permanent.

Amycel filed its Statement of Case on 30 August 2025. The acts of infringement occurred in The Netherlands, Germany, France and Italy, but the defendant was located in Poland, consequently r. 274(a)(i) RoP applied for service. The defendant’s representative at the preliminary injunction hearing had not been retained for the merits action and would not accept service on the defendant’s behalf. The Registry sent registered letters with acknowledged receipt to the defendant on two occasions. On both occasions, the letters were returned unopened. Amycel also attempted to effect service through a Dutch bailiff in two alternative ways. On both occasions, the defendant refused to accept the service documents and returned the packages to the Dutch bailiff unopened. The defendant did not make a written declaration of refusal.

After three and a half months, Amycel filed an application for alternative service on the defendant. The Judge-Rapporteur considered Amycel’s service attempts were in accordance with the UPC principles of efficiency and fairness (RoP Preamble, points 4 and 5) and constituted "good service" pursuant to r. 275.2 RoP. A copy of the Order of the date of deemed service was sent to the defendant’s representative from the preliminary injunction hearing, who was requested to forward it to the defendant. The deadline for filing a Statement of Defence (SoD) was 25 February 2025.

The defendant finally registered a representative for the merits action on 6 January 2025. The SoD was not uploaded until 4 March 2025, along with an application to re-establish the rights in respect of the deadline to file the SoD (under r. 320 RoP). On 1 April 2025, this application was refused by the court and a decision by default in the infringement action announced. However, the defendant went on to file a further six applications between 1 April and 12 June 2025. In response, Amycel asked the Court to issue the decision by default and grant the relief requested. The Court determined that the factual and legal arguments had not changed since the preliminary injunction hearing and a permanent injunction was granted with immediate effect. The Court also ordered the defendant to provide detailed sales and distribution information, recall and destroy infringing products, notify customers and publish a notice on its website, and imposed penalty payments for non-compliance with any of these steps. The defendant was also held liable for damages and ordered to pay an interim award of €50,000, as well as bear the costs of the proceedings.
 

UPC

Milan Central Division Upholds Labrador Diagnostics Patent in Amended Form After bioMérieux Challenge.
[UPC_CFI_497/2024]

On 23 October 2025, the Milan Central Division gave its decision on the consolidated revocation actions brought by bioMérieux against Labrador Diagnostics in relation to a patent claiming an instrument for detecting a biological analyte. The Court found that the patent as granted and as amended by the patentee’s Main Request and Auxiliary Requests 1 and 2 lacked novelty and contained added subject-matter, but upheld the patent in the form of Auxiliary Request 3, which overcame the objections of lack of novelty, lack of clarity, inventive step, and sufficiency.

The Court noted that, across the Main Request and Auxiliary Requests, bioMérieux filed a significant number of attacks: about 50 invalidity attacks, more than 12 added matter attacks, 3 novelty attacks, 1 insufficiency attack, and 6 different starting points for 30 inventive steps attacks.

Importantly, the Court ruled that, if the number of arguments proves unmanageable or overly complex for the panel, the party that filed them must, if not reduce them, at least arrange the legal pleadings in order of importance and likelihood of success. However, it clarified that the judges’ impartiality prevented the Court from indicating which validity attacks it considered to be the most promising or most likely to be successful.

Labrador Diagnostics requested that the award of costs be subject to an order for confidentiality. However, the Court found that the sum of legal costs should not be kept confidential because that amount does not say anything about the company's financial capacity, its commercial strategy, or the importance of the patent as a corporate asset.
 

UPC

The Hague LD rejects Abbott’s application for a Preliminary Injunction.
[UPC_CFI_587/2025]

On 22 October 2025, The Hague LD provided its decision in Abbott Diabetes Care Inc.’s application for provisional measures against Sinocare Inc. and A. Menarini Diagnostics s.r.l. relating to displays for continuous glucose monitoring (CGM) systems. Abbott claimed that the defendants’ GlucoMen iCan CGM system and its associated iCAN GSM App infringed several claims of European patent with unitary effect EP 3 988 471 (UP 471). Abbott sought a preliminary injunction, ancillary corrective measures and costs (including an interim award of costs).

Jurisdiction

Menarini, the European distributor of the CGM system in dispute, did not challenge jurisdiction. On the other hand Sinocare, a Chinese company, argued that it was not domiciled in a UPC member state and that its threatened infringement had not been substantiated. The Court disagreed. Sinocare manufactures the GlucoMen iCan device and it was not disputed that Sinocare makes the iCAN GGM App available on its website for customers in the UPC territory. Additionally, Menarini and Sinocare announced that they would cooperate in bringing GlucoMen iCan to the European market. There was therefore at least combined/joint threatened infringement in the UPCA territory. Further, the allegations concerned threated infringement of the same patent in the same territory with the same product. The Court therefore decided that jurisdiction as regards Sinocare was established based on Art. 7(2) of the Brussels Regulation.

Unreasonable delay

The Court held that there had been no unreasonable delay in seeking provisional measures. The defendants argued that Abbott should have been aware that GlucoMen iCan was going to be launched in Europe from December 2024. However, the Court agreed with Abbott that it needed time to assess the interaction between the GlucoMen iCan and iCan CGM App, and to assess the functionality against the final wording of the claims following the opposition proceedings against the patent, which did not crystalise until March 2025. The latest version of the iCan CGM App only became available on 21 April 2025 and the GlucoMen iCan samples were obtained on 24 April 2025. The court felt that two months to assess infringement and then start the PI proceedings was reasonable.

Claim interpretation and infringement

UP 471 relates to the displays of, in particular, the receiver unit of a CGM system. These displays provide comprehensive and easily understandable information to assist a user with diabetes management and glycaemic control. The claim features in issue are particularly directed to a so-called “timeline graph display”. The display allows the user to identify how an event (input by the user) affected their glucose level. The defendants’ non-infringement arguments hinged on the construction of the characteristics of the timeline graph display, in particular whether the wording of the claim required the event data icons to be displayed on the timeline graph itself or also covered displays where the event data icons were included in a separate panel/section on the same screen. The Court considered that UP 471 describes and claims the layout in great detail, and that the teaching required the event icons to appear on the graph itself. Any differences from the layout claimed and described were a key distinction.

The Court therefore held that the GlucoMen iCan did not infringe because the App contained a display in which the event icons are not included on the graph, but are instead included on another panel of the screen below the graph. Since the court considered it was more likely than not that the product did not infringe this feature, the other non-infringement arguments were not considered, nor were the validity arguments.

As to costs, both sides had incurred costs in excess of the applicable ceiling of €400,000, which the court deemed reasonable and proportionate in the absence of any objections from the parties. The Court clarified that an applicant for provisional measures may be ordered to pay an interim award of costs, in case this was not already clear from r. 211.1(d) RoP. Abbott was therefore ordered to pay €400,000 to the defendants by way of interim award.
 

Singapore

IPOS Consults on Proposed Changes to Patent Regime.

On 15 October 2025, the Intellectual Property Office of Singapore opened its public consultation on proposed changes to Singapore’s IP regime. The consultation period will run until 25 November 2025.

The patents section consultation seeks input from stakeholders on:

1. Proposed formalisation of the requirement to submit basis for requesting amendments during prosecution; and

2. Proposed amendment of the language of the legislation relating to reversal of the burden of proof to clarify that the rebuttable presumption that an alleged infringer’s product was obtained by a patented process applies either (a) when the product is new, or (b) when there is a “substantial likelihood” that the defendant’s identical product was made by the process and the patentee has been unable through reasonable efforts to determine the process actually used.
    

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Episode 4 breaks down the ex parte order granted under Article 60 UPCA by the Düsseldorf Local Division for a machine showcased at the EMO Hannover trade fair.

View all episodes here