A recent decision of the Düsseldorf Local Division of the UPC hammers home its aim of achieving efficient and front-loaded procedure in Europe. The case reaffirms that:
- procedure is front-loaded at the UPC;
- thorough and early analysis is essential in order to present the best case at the UPC; and
- parties should present their full case from the outset.
The issue at hand
In this case a new line of argument was presented only in
the oral hearing relating to added matter and the counterclaim for
revocation; in particular whether specific embodiments in the
specification supported the general concept on which the claim is
based. The specification was lengthy (original publication was
around 100 pages) and the arguments were based on completely
different passages of the document to those considered
previously.
The decision
Accordingly, the Court deemed that such support could
easily have been presented in accordance with the time limits set
by the Rules of Procedure (RoP). The new line of argument was
therefore rejected pursuant to Rule 9.2 RoP.
It was emphasised that neither the Court nor the other party may be forced to deal with the further argument(s) from scratch. Notably, the decision explicitly sets out that admittance of new arguments presented so late in the procedure would undermine the concept of the front-loaded procedure established by the RoP. In any case for completeness the Court also stated that the argument was not convincing on the merits.
Summary
This case highlights the UPC's strict approach to
ensuring a front-loaded procedure, in its decision and its explicit
comments to that effect.
It will be interesting to see where the line is drawn regarding late-filed arguments as UPC case law continues to develop, and whether the Court will continue to take a strict approach. For example, would the decision have been different here if the arguments were clearly relevant or even if the document in question was much shorter? Based on the Court's explicit comments, this seems unlikely, and there follows our key takeaways...
Key takeaways
- Commit to performing a thorough analysis and presenting all relevant arguments early in the procedure
- UPC litigation favours preparedness
UPC number: UPC_CFI_26/2024; decision dated 30 July 2025
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