Dexcom and Abbott's fight over glucose monitoring patents intensifies in Europe

Dexcom and Abbott are currently going head-to-head over twelve separate patents covering their respective glucose monitoring devices (continuous glucose monitoring, or CGMs). The dispute spans the UK, Germany and the US, although it is likely that other European jurisdictions are involved.

With around one in 14 people in the UK alone living with diabetes, the market is vast. As such, the value of the connected medical devices involved in glucose monitoring is only set to grow.

Market heats up

Diabetes patients have traditionally monitored their glucose levels via a ‘finger prick’ method. Over the past 20 years, however, companies have developed a method known as ‘continuous glucose monitoring’. Improvements in smart phone connectivity means a growing number of patients have access to this technology.

Devices made by Dexcom and Abbott involve a small sensor being inserted under the skin, which alerts the user as to their current glucose levels via connection to a wireless monitoring device.

Both Dexcom and Abbott have CGM devices on the UK market. Abbott has three products, the Freestyle Libre, Freestyle Libre 2 and 3, while Dexcom markets the G6 or G7. In the UK, the NHS supplies the Abbott devices to patients. However, both parties are gearing up to launch new, lower cost and apparently more innovative products into their ranges, with Abbott already having launched its Freestyle Libre 3 product in Germany. Both parties are keen to clear the way and capture a larger market share.

Dexcom and Abbott up close

Now the two companies are facing off in a global patent dispute in the US, the UK and Germany.

In Europe, the dispute began in July 2021 when Dexcom filed infringement suits on four of its patents: (EP (DE) 866 and EP(DE) 224; EP (DE) 159 and EP (DE) 539). This was against Abbott at the Regional Court Mannheim.

Abbott counterclaimed by asserting infringement of four of its patents (EP (DE) 625 and EP (DE) 627; EP (DE) 223 and EP (DE) 636) against Dexcom at the same court. Two further cases, brought by Abbott against Dexcom, are also ongoing at the Regional Court of Düsseldorf.

Both companies have sued each other for injunctive relief. But neither Dexcom nor Abbott have filed applications for a preliminary injunction.

Safe application

However, the Regional Court Mannheim has dismissed the first case by Abbott against Dexcom over EP 24 76 223 on the grounds of insufficient evidence of infringement (case ID: 7 O 103/21 and  7 O 92/21). Abbott had applied for injunctive relief, information and invoicing, assessment of damages and destruction, as well as a recall and removal of Dexcom’s products from the distribution channels.

EP 223 covers checks for the device’s safe application, with Abbott asserting the patent was infringed by Dexcom’s G6 model. Abbott has already appealed the decision.

Fight continues

Today, the Regional Court Mannheim will hear another infringement case against Dexcom by Abbott concerning EP 21 46 627 (case ID: 7 O 91/21 and 7 O 101/21).

Furthermore, the Regional Court Mannheim heard two cases pertaining to Dexcom patents EP 159 and EP 224 in April 2022 and May 2022 respectively. Dexcom again accused its competitor of infringement. The court requires both sides to submit further written briefings, however, and has pushed back the release of its decision on EP 224 until 15 July. A hearing on EP 159 is expected in September.

UK runs parallel

In the UK, twelve patents are at issue. Abbott claimed infringement of its eight patents, while Dexcom reacted by claiming infringement of its four patents. Both parties have challenged the patents-in-suit of the competitor.

Earlier in 2021, Abbott applied to the UK High Court to expedite an upcoming trial, over the validity of four patents, against Dexcom. While the company stated that a motivation was to achieve commercial certainty in the UK for its new Freestyle Libre 3, the judgment cites the primary reason as “Abbott’s desire to obtain a decision on the validity of four European Patents here in order to influence a German Court considering infringement of the German equivalents”.

However, presiding judge James Mellor rejected the application. He stated that Abbott’s reasoning behind trial expedition, namely to reach a finding on validity in the UK before the German courts could hear infringement proceedings, was not strong enough.

Abbott had put forward this argument in order to avoid the so-called injunction gap, where the bifurcated German system examines validity and infringement separately. This can lead to courts granting an injunction before reaching a finding on validity.

Source:https://www.juve-patent.com/cases/dexcom-and-abbotts-fight-over-glucose-monitoring-patents-intensifies-in-europe/ - Amy Sandys

Editor: Peter