Article 73

Appeal

1.   An appeal against a decision of the Court of First Instance may be brought before the Court of Appeal by any party which has been unsuccessful, in whole or in part, in its submissions, within two months of the date of the notification of the decision.

2.   An appeal against an order of the Court of First Instance may be brought before the Court of Appeal by any party which has been unsuccessful, in whole or in part, in its submissions:

(a) for the orders referred to in Articles 49(5), 59 to 62 and 67 within 15 calendar days of the notification of the order to the applicant;

(b) for other orders than the orders referred to in point (a):

(i) together with the appeal against the decision, or

(ii) where the Court grants leave to appeal, within 15 days of the notification of the Court's decision to that effect.

3.   The appeal against a decision or an order of the Court of First Instance may be based on points of law and matters of fact.

4.   New facts and new evidence may only be introduced in accordance with the Rules of Procedure and where the submission thereof by the party concerned could not reasonably have been expected during proceedings before the Court of First Instance.

Case Law

Court of Appeal

IPPT20260330, UPC CoA, Sinocare v Abbott
Review first instance procedural errors in appeal (Article 73 UPCA). The Appellants have not shown that any of the alleged procedural errors resulted in an incorrect decision by the LD. This is for the Appellants to demonstrate and already for this reason, the alleged procedural errors cannot result in setting aside the Order. 
 

IPPT20260316, UPC CoA, Vivo v Sun Patent
The Court of First Instance has case management discretion to either decide on the Preliminary objection as soon as practicable or decide to deal with the Preliminary objection in the main proceedings (R. 19 RoP, R. 20 RoP, R. 102.1 RoP, R. 331.1 RoP). The decision to deal with the Preliminary objection in the main proceedings may be taken either by the judge-rapporteur, as laid down in R. 20.2 RoP, or by the panel if the judge-rapporteur has decided to refer the matter to the panel to decide. R. 102.1 RoP on the interim procedure shall apply applies mutatis mutandis to the written procedure where the judge-rapporteur, after his assignment to the case by the presiding judge pursuant to R. 18 RoP, is likewise tasked with the management of the case, including case management decisions or orders relating to a Preliminary objection. Limited review in appeal (Article 73 UPCA)  Considering that the CFI has a margin of discretion […] the review by the Court of Appeal is limited. If, within this limited scope of review, it is established that the CFI erred in using its discretion, for example by misusing or exceeding its discretion, the order must be set aside. 

IPPT20260226, UPC CoA, EOFlow v Insulet
Under R. 220.3 RoP, discretionary review is only possible when a timely application within 15 days for leave for appeal is made to and rejected by the CFI. Auxiliary request for CoA to grant leave for appeal inadmissible. Article 73 (2)(b)(ii) UPCA does not empower the Court of Appeal to itself grant leave to appeal . Article 73 (2)(b)(ii) UPCA empowers the Court to grant leave to appeal “within 15 days of the notification of the Court´s decision to that effect”

IPPT20260211, UPC CoA, Valeo v Bosch
Appeal against order judge-rapporteur granting preliminary objection but not ending the proceedings admissible under R. 220.1 RoP. (Article 73 UPCA) An order granting a preliminary objection that does not end the proceedings is not a decision granting the preliminary objection in the sense of Rule 21.1 RoP. An order of the judge-rapporteur granting the preliminary objection but not terminating the proceedings in respect of one of the parties is neither a "decision" granting the preliminary objection within the meaning of the first sentence of Rule 21.1 RoP, nor is it an order that "rejects" the preliminary objection within the meaning of the second sentence of Rule 21.1 RoP. In the case of such an order, which does not fall within any of the grounds for appeal referred to in Article 73(1) and 73(2)(a) UPCA or Rule 220.1 of the RoP, the provisions of the second sentence of art. 21.1 of the RoP must apply by analogy. 

IPPT20260204, UPC CoA, EOFlow v Insulet
Appeal against order imposing penalties inadmissible. (Article 69 UPCA,  Art. 82(4) UPCA, Rule 354.4 RoP). Appealable decisions (Rule 220 RoP) Orders imposing penalty payments do not fall under Article 73(2)(a) UPCA or Rule 220.1 RoP, an appeal against such orders is only admissible if leave to appeal is granted according to Rule. 220.4 RoP. This clarification is necessary because, unlike the typical procedural orders, this order is not necessarily issued in the course of ongoing proceedings prior to a final decision. It may also be, and typically is, issued after the main proceedings have been concluded. 

IPPT20260121, UPC CoA, Valeo v Bosch
Respondents invited to submit within seven days comments on the admissibility of an appeal on the basis of R. 220.2 RoP  of an order allowing a Preliminary Objection (R. 21 RoP, R. 220 RoP, Article 73 UPCA). Time limit filing Statement of response suspended (R. 235 RoP)

IPPT20241015, UPC CoA, Photon Wave v Seoul Viosys
Leave to appeal under R. 220.2 RoP must be expressly granted by the Court of First Instance and cannot be presumed. The phrase that the order "is subject to appeal under the conditions laid down by the provisions of R. 220.2 RoP" is for information purposes only and not a grant of leave to appeal (Article 73(2) UPCA).

IPPT20240925, UPC CoA, Mammut v Ortovox

Scope of appeal and proceedings (Article 73(4) UPCA, R. 222.1 RoP). The Court of Appeal decides at its discretion, taking into account all the circumstances, whether a submission that was rightly not admitted by the Court of First Instance is to be considered in the appeal proceedings. The subject matter of the appeal proceedings in proceedings for the review of interim measures is in principle limited to the submissions made in the proceedings for the grant of interim measures. In order to ensure legal certainty and the proper administration of justice, the statement of grounds of appeal must be sufficiently clear and specific to enable the respondent to prepare a defence of the judgment at first instance and to enable the court hearing the appeal to decide the appeal. The court may not take into account in its decision written submissions that are submitted only after the conclusion of the oral proceedings on which the decision is based. (R. 195 RoP).

IPPT20240916, UPC CoA, ICPillar v ARM
Court may of its own motion disregard late filed requests, facts and evidence even if these were not objected to by the other party (Article 73(4) UPCA, R. 222.2 RoP). 

IPPT20240226, UPC CoA, AIM Sport v Supponor
Parties requested to comment on non-compliance with Rule 224.1(b) RoP, providing that a Statement of Appeal of an order has to be filed within 15 days of service of an order referred to in Rule 220.1(c) RoP. Under “Information about Appeal” the CFI has indicated that the decision could be appealed within two months of the date of notification of the decision, referring to Article 73(1) UPCA and Rule 220.1(a) and Rule 224.1(a) RoP concerning an appeal against a decision, such as a decision in an infringement action, while in one of the two actions AIM sought a preliminary injunction order pursuant to Article 62 UPCA.

Court of First Instance

IPPT20241212, UPC CFI, CD Paris, Microsoft v Suinno
Leave to appeal rejected (Article 73(2)(b)(ii) UPCA). The issue raised by the applicant is not the subject of different interpretations by Unified Patent Court judges and, anyway, is not able to affect the final decision on the merits that the Court shall issue.

IPPT20240729, UPC CFI, LD The Hague, Powell Gilbert v Abbott and Sibio
Public access to the register granted, applying criteria set forth in IPPT20240410, UPC CoA, Ocado v Autostore (Rule 262 RoP). Leave to appeal granted. From R. 220/224 RoP and 73 UPCA it might not be totally clear if and when an appeal of this order can be lodged, while it appears this should at any rate be made possible. To prevent an appeal to become meaningless, a term of 15 days before access is granted is to be observed (and unless no appeal is filed within that period).

IPPT20240227, UPC CFI, CD Paris, Meril Italy v Edwards Lifesciences
Leave to appeal rejected (Article 73 UPCA, Rule 220 RoP). In the absence of any precedents from the UPC on the disputed issue, there is no concrete need for a ruling on the meaning of the relevant rules; In case of a possible immediate appeal to this order a decision by the Court of appeal may intervene after that the oral hearing in the current proceedings has taken place and, therefore, would be of no practical use to the parties.

IPPT20231113, UPC CFI, CD Paris, Meril Italy v Edwards Lifesciences

Preliminary objection concerning the competence of the Central Division because of a pending action before the Munich Local Division rejected: Meril Italia is not the same party a Meril India or Meril Germany (article 33(4)UPCA, Rule 20 RoP). No leave for appeal granted, because the Respondent has no actual and concrete interest in it (Rule 220 RoP). This decision is not capable of causing any harm to the Respondent, since a prejudice to its positon may arise only by the decision that allows the Preliminary objection.