Article 81

Rehearing

1.   A request for rehearing after a final decision of the Court may exceptionally be granted by the Court of Appeal in the following circumstances:

(a) on discovery of a fact by the party requesting the rehearing, which is of such a nature as to be a decisive factor and which, when the decision was given, was unknown to the party requesting the rehearing; such request may only be granted on the basis of an act which was held, by a final decision of a national court, to constitute a criminal offence; or

(b) in the event of a fundamental procedural defect, in particular when a defendant who did not appear before the Court was not served with the document initiating the proceedings or an equivalent document in sufficient time and in such a way as to enable him to arrange for the defence.

2.   A request for a rehearing shall be filed within 10 years of the date of the decision but not later than two months from the date of the discovery of the new fact or of the procedural defect. Such request shall not have suspensive effect unless the Court of Appeal decides otherwise.

3.   If the request for a rehearing is well-founded, the Court of Appeal shall set aside, in whole or in part, the decision under review and re-open the proceedings for a new trial and decision, in accordance with the Rules of Procedure.

4.   Persons using patents which are the subject-matter of a decision under review and who act in good faith should be allowed to continue using such patents.

Case Law

Court of Appeal

IPPT20260224, UPC CoA, Suinno v Microsoft
Application for rehearing rejected (Article 81(1) UPCA; R. 245 RoP). Only fundamental procedural defects can be the basis for a rehearing. What Suinno has brought forward in its Applications is not sufficient to conclude that the Court of Appeal made an error, let alone one that must be considered a flaw of such a serious nature that it would constitute a fundamental error without which the same decision or order would not have been taken. According to R. 248.1 RoP, an Application for rehearing based on the ground of a fundamental procedural defect is only admissible where an objection in respect of the procedural defect was raised during the proceedings before the Court of First Instance or the Court of Appeal and dismissed by the Court, except where such objection could not have been raised during the proceedings before the Court of First Instance or the Court of Appeal. Non-compliance with order to pay security must lead to default judgment (R. 158.5 RoP). It is only under exceptional circumstances that the Court may derogate from this general rule. 

IPPT20250619, UPC CoA, Alexion v Amgen
Application for rehearing (R. 245 RoP, Article 81 UPCA)) rejected as not allowable. The legislator has explicitly chosen that decisions by the Court of Appeal are to be final. The literal wording of Art. 81(1) UPCA makes clear that a rehearing may exceptionally be granted only if the decision suffers from one of these serious deficiencies. A rehearing is thus not a regular appeal proceeding, but an extraordinary legal remedy. Only fundamental procedural defects can be the basis for a rehearing. Mere errors of any kind cannot be a ground for an application for rehearing. A defect may only be considered fundamental if it can be established that without the defect the same decision would not have been taken. The Court must consider all arguments brought forward by the parties, but it is, however, not required to explicitly and exhaustively address in its order or decision each and every argument advanced by a party in detail in the order or decision. 

IPPT20240806, UPC CoA, 10x Genomics v Nanostring
Application for rehearing inadmissible; no fundamental procedural defects (Article 81 UPCA, Rule 247(e) RoP). Grounds for the decision not based on personal opinion of one or more of the judges but on evidence, including the patent specification, supporting Nanostring’s arguments. With the words "in the judgement of the technically competent court" only expressed that it was particularly equipped and qualified to assess the arguments and evidence presented in a technically complex matter. The assessment of the arguments and evidence presented by the parties is made by the appellate court hearing the case and is not subject to review on a motion for rehearing. Court of Appeal not precluded from cost decision in  appeal decision that concludes actions for provisional and protective measures (Rule 118(5) RoP, Rule 242(1) RoP, Article 62 UPCA).