UPC: No requirement to disclose commercial information in request to amend claim

In accordance with front-loaded UPC procedure, any request to amend a party’s case must be made as soon as it is reasonably possible to do so. This usually means that the request must be made as soon as the applicant becomes aware of the change in circumstances that triggers the request. Abbott requested to amend their claim in the infringement proceedings brought by DexCom, Inc. against various Abbott entities (UPC_CFI_395/2023) in response to the release of a new version of an app related to the contested product. The new version had different functionality, which according to Abbott did not infringe DexCom’s rights. Abbott requested the opportunity to be heard under Rule 264 RoP regarding the newly released version of the app, and requested that the new version be considered in the oral hearing.

Judge Rapporteur Lignieres at the Paris (FR) Local Division found that although Abbott would have been aware of the release of the new app for some time, the request to change the case to include the new version in the proceedings could not have been made with reasonable diligence at an earlier stage because Abbott had no obligation to share commercial information with a competitor. 

Ultimately, however, the request was refused because there was insufficient time to prepare for the new matter to be introduced into the litigation before the imminent oral hearing. JR Lignieres also suggested that proceedings for a declaration of non-infringement under Rule 61 RoP were still available for the new version of the app, so denial of the request would not contravene the principles of equality and fairness. Once again, we observe that the UPC is willing to take a fair, pragmatic, and business-minded approach to changing the scope of proceedings. 

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