1 Key takeaways
Filing a declaration of non-infringement before patent grant raises a question of admissibility, not of UPC competence, under Art. 32(1)(b) UPCA
– Competence pursuant to Art. 32(1)(b) UPCA depends on the claimant’s actual intent in its statement of claim. Because the claimants sought a declaration of non-infringement against granted patents, the action falls within the court’s competence, while premature filing prior to the grant of a patent is an issue of claim admissibility.
– Whether a declaration for non-infringement action was filed prematurely (i.e., before grant of a patent) is a separate admissibility question that falls outside the exhaustive list of objections available under R. 19 RoP.
An opt-out filed after a declaration of non-infringement action has already been lodged is ineffective under Art. 83(3) UPCA
– The term “action” in Art. 83 UPCA covers all actions listed in Art. 32 UPCA, not merely infringement or revocation actions.
– A defendant’s opt-out application filed after such action was lodged therefore has no effect.
The Court of First Instance loses power to grant leave to appeal, even retroactively, once the 15-day period under R. 220.3 RoP lapses without a decision
– Where the Court of First Instance fails to decide on a timely leave to appeal request within 15 days, leave is deemed refused.
– A subsequent request for discretionary review must then be filed within the following 15-day period under R. 220.3 RoP.
A statement of appeal filed within the discretionary review deadline may, in exceptional circumstances, be reinterpreted as a request for discretionary review under R. 220.3 RoP
– The Court of Appeal left open whether genuine legal uncertainty created by evolving case law, combined with a diligent filing and an unconditional (albeit late) granted leave to appeal by the Court of First Instance, could justify such reinterpretation, since the appeal was unfounded regardless.
2 Division
Court of Appeal
3 UPC number
UPC_CoA_90/2026
4 Type of proceedings
Appeal against an order rejecting a preliminary objection
5 Parties
Appellant / Defendant: Sidel Participations SAS
Respondents / Claimants: Omnia Technologies S.p.A., ACMI Labelling S.r.l., ACMI S.p.A.
6 Patent(s)
EP 4 594 194, EP 4 624 351
7 Jurisdictions
UPC
8 Body of legislation / Rules
Art. 32(1)(b), Art. 83(1), (3) UPCA, Rule 19, 61, 63, 220.2, 220.3, 300(a) RoP
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