UPC: the Milan CD on the right to intervene in preliminary proceedings

By procedural order dated 1 October 2024, the Milan CD of the UPC dismissed Menarini Diagnostic Srl’s application to intervene in preliminary proceedings between INSULET Corp and EOFLOW Co. Ltd (UPC_CFI_380/2024).

Specifically, on 3 July 2024 INSULET filed an application for provisional measures for patent infringement before the Milan CD against the Korean company EOFLOW. On 16 September 2024, Menarini, i.e. a distributor of the attacked embodiment manufactured by EOFLOW, filed an application to intervene in the proceedings, claiming that a decision in this case would affect its legal interests regarding the contractual relationships towards both EOFLOW and its customers. INSULET opposed the intervention pointing out that Menarini had no legal interest to intervene in the case at hand, as it was already a party in parallel proceedings pending before the Milan LD where INSULET had applied for similar provisional measures against Menarini itself (UPC_CFI_400/2024).

The Milan CD granted INSULET’s defence and dismissed Menarini’s application to intervene based on the following:

·       “Intervention in interim injunction proceedings is only available in exceptional cases. (…) As the acceleration of the proceedings is the main purpose of interim injunction proceedings, and proceedings on the merits must be initiated subsequently, interim injunction proceedings must not be overloaded, for example with interventions that could slow down the proceedings and, above all, can be made in proceedings on the merits.”

·       “Pursuant to Art. 313 RoP, intervention is allowed to a third party having its own interest not merely factual but legal. The third party must therefore present itself as the owner of a legal relationship connected with the one brought in litigation by the counterpart or dependent on it and the connection must entail a total or partial impairment of the right of which the third party claims to be the owner in the event the original party loses the case. In this case, however, the legal interest of MENARINI is already granted by way of defence in the parallel proceedings in front of UPC Milan Local Division”.

·       “If the third party has a mere de facto interest in one of the parties to the principal relationship being victorious, to only booster the parallel case, no legitimacy to intervene can be recognised and this is precisely the situation that arises in the present case”.

The decision also touched on an issue with the UPC’s CMS. In fact, MENARINI had only sent a hard copy of its application and refrained from filing electronically, as there was no intervention-workflow in the CMS. INSULET claimed that this must lead to a rejection of the application to intervene, as electronic filing using the official forms and workflow is mandatory.

The Court dismissed this objection, highlighting that MENARINI was not a party to the proceedings and thus it was technically not possible for it to use workflow in the CMS for the application to intervene. Thus, the Court noted, “in the absence of alternatives, due to lack of capacity on the part of CMS, the procedure for intervention can only be initiated in hard copy. A different interpretation would lead to a substantial violation of the intervener's substantial rights since the right to intervene is provided for in the RoP (art. 313) and must therefore be able to be exercised in any form”.

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