Appeals

Yes, the UPC's Court of Appeal may hear appeals against separate decisions on the merits in infringement proceedings and in validity proceedings together (Rule 220.3 of the draft Rules of Procedure of the UPC).

In case of bifurcation at first instance, the language of proceedings before the local or regional division may not be the same as the language of proceedings before the central division. The language of proceedings before the Court of Appeal will however be the language of proceedings of the main action, namely the infringement action heard by the local or regional division. In such a case, the judge-rapporteur may order the appellant to lodge translations into the language of the proceedings before the Court of Appeal of written pleadings and other documents lodged by the parties before the Court of First Instance and decisions or orders of the Court of First Instance (Rule 232.1 of the draft Rules of Procedure of the UPC).

The appeal will neither be a complete rehearing of the first instance case nor will it be strictly limited to points of law. An appeal may be based on points of law and matters of fact (Article 73.3 of the UPC Agreement).

A new fact or new evidence may only be introduced at the appeal stage if a party could not reasonably have been expected to submit it during proceedings at first instance (Article 73.4 of the UPC Agreement). The UPC's Rules of Procedure shall lay down further details relating to new facts and evidence. In Rule 222.2 of the draft Rules of Procedure of the UPC, it is provided that requests, facts and evidence which have not been submitted by a party during proceedings at first Instance may be disregarded by the Court of Appeal; when exercising this discretion, the Court of Appeal shall in particular take into account:

  • whether a party seeking to lodge new submissions is able to justify that the new submissions could not reasonably have been made during proceedings before the Court of First Instance,
  • whether the new submissions are highly relevant for the decision on the appeal,
  • the position of the other party regarding the lodging of the new submissions.

Under Article 73 of the UPC Agreement and Rule 220.1 of the draft Rules of Procedure of the UPC, the decisions of the Court of First Instance which may be appealed as of right are (1) final decisions, (2) decisions which terminate proceedings as regards one of the parties and (3) decisions or orders referred to in the following Articles of the UPC Agreement:

  • Article 49.5: decision of the President of the Court of First Instance to use the language in which the patent was granted as language of proceedings, at the request of one party.
  • Article 59: order to produce evidence and to communicate banking, financial or commercial documents.
  • Article 60: order to preserve evidence and to inspect premises.
  • Article 61: freezing order.
  • Article 62: order granting provisional and protective measures, including injunctions, seizure and delivery up.
  • Article 67: order to communicate information.

Other orders of the UPC may only be appealed together with the appeal against the final decision of the Court of First Instance, or where the Court grants leave to appeal (Article 73.2(b) of the UPC Agreement).

Under Article 73.2(b)(ii) of the UPC Agreement, "the Court grants leave to appeal". The Court is the UPC as such which means that the Court of First Instance as well as the Court of Appeal will be able to give permission to appeal.