Context: Insulet v. EOFlow is a Unified Patent Court (UPC) medical device (insulin pump) case that has previously led to interesting decisions, above all the Court of Appeal’s (CoA) decision to reverse the Milan seat of the Central Division (CD), resulting in a 17-country preliminary injunction (PI; officially called “provisional measures”) (May 2, 2025 ip fray article).
What’s new: The CD Milan has now concluded the main proceedings with a judgment (PDF) that is partly based on EOFlow’s failure to comply with the order to provide collateral. EOFlow’s revocation claim, which technically made it the claimant in the CD Milan though Insulet started the dispute through enforcement action and brought an infringement counterclaim, was dismissed by default. The infringement finding, however, is based on extensive analysis by the court. The remedies are drastic, running the gamut from an accounting and sales ban to removal from distribution channels and a €230K interim award of damages. But the court was somewhat lenient on the cost award. Certain litigation costs and executive travel expenses were deemed out of line.
Direct impact: It appears that EOFlow, which is reportedly in bad financial shape, has practically given up on this dispute and is merely engaging in damage control. That makes an appeal rather unlikely, especially since the CoA has already adjudicated the merits as a result of Insulet’s appeal of the PI denial.
Wider ramifications: The decision is more thoughtful than the circumstances would suggest and takes some interesting positions on issues that will resurface in many other UPC cases. One of the headnotes relates to claim construction, acknowledging that a patent serves as its own dictionary, but a a straightforward reading based on the “principal functional meaning” of the claim terms is required.
This is presumably the first Court of First Instance (CFI) decision involving a default after the recent CoA ruling on the standard for default judgments (July 13, 2025 ip fray article), and it applies a consistent standard with that one, though it doesn’t reference it by name (the parties were Suinno and Microsoft) or by number (UPC_CoA_363/2025). The procedural context differs primarily with respect to the defaulting party’s role: Suinno was the plantiff-appellee with respect to a default judgment that defendant-appellant Microsoft was seeking after the CD had denied it; here, however, the revocation claimant and infringement (counter)defendant EOFlow defaulted.
Like the CoA, CD Milan notes (also in the first headnote) that a decision by default against a defendant requires the court to determine that the record supports the relief sought (which can be an infringement ruling or revocation). The decision was probably written for the most part before last week’s CoA decision, given that it was not necessary to clarify this after the CoA had already done so. But this may have been a case of “Great minds think alike.” If there was anything new here relative to the CoA decision, it was that the same principle that the CoA laid out for default judgments against defendants also applies to counterdefendants.
The original claim in this case was EOFlow’s revocation claim, and that one was simply thrown out for default without the court having to perform any further assessment.
The court’s infringement analysis is very detailed. In fact, the court arguably went beyond the call of duty, holding a hearing despite the default, just to be sure it would have the benefit of such oral proceedings when deciding. Insulet disagreed, and if it had lost, the appeal would have been interesting.
What Insulet could still appeal is the cost decision to the extent that it was not reimbursed certain costs, particularly because the court
- blamed Insulet for bringing unnecessary duplicate litigation against EOFlow (the device maker) and Menarini (its distributor, which settled) in two different divisions and
- declined to reimburse Insulet’s CEO’s travel expenses to the extent that he also spent time preparing for the related hearings with his lawyers (several more days in Luxembourg than would have been required to attend the hearing, and a couple of days in Munich prior to a Milan hearing to prepare with Munich-based counsel).
It would be good for legal certainty if Insulet appealed those parts, but whether it wants to spend money on such an appeal, against a party that may ultimately not be able to pay anyway, remains to be seen.
Court and counsel
Presiding Judge (and here, judge-rapporteur) Andrea Postiglione, Judge Anna-Lena Klein (from Munich, but primarily assigned to CD Milan) and Technically Qualified Judge Uwe Schwengelbeck.
Counsel for EOFlow: Hoyng Rokh Monegier’s Christopher Pierce.
Counsel for Insulet: Peterreins Schley’s Dr. Frank Peterreins (founding name partner). The CD Milan decision does not name additional counsel, but in our article on the CoA decision, we also listed, from the same firm, Dr. Marc Grunwald, Dr. Simon Reuter and Constanze Wedding, as well as patent attorney Felix Gloeckler (“Glöckler” in German).