UPC_CFI_40/2026 – Emboline v AorticLab
- Court
- Court of Appeal
- Date
- Outcome
- Denied
- Sector
- Pharma/Bio
- Decision Type
- PROCEDURAL
Expert Commentary
Case management Facts 1. These appeal proceedings concern EP 2 129 425. 2. Emboline filed an application regarding new late filed evidence, and requested either the submission of new evidence or a further exchange of written pleadings. The JR 1. Emboline may comment on the new evidence during the hearing, and, if it wishes to do so, clarify which part(s) of the new evidence and the Statement of Response should be disregarded. 2. The Court does not allow further pleadings or submission of exhibits. 3. The written proceedings will be closed on 29 September 2026. 4. An interim conference is not necessary. Comment 1. Emboline’s request is apparently not very clear, given the precision the JR asks for (if the objection is maintained during oral argument). 2. These type of objections take a substantial amount of time to study and decide, especially if it is not presented concisely and with a convincing explanation, and that is not efficient for a busy Court of Appeal. 3. The lesson for representatives is therefore: If you really think that such an objection is important for your case and you want a decision from the JR of the Court of Appeal before the hearing, you should at least present it clearly so that it can be decided quickly.
Full Decision Text
1 ORDER of the Court of Appeal of the Unified Patent Court issued on 28 September 2026 concerning an application for late-filing objection (R. 9.2, 36 and 336 RoP) APPLICANT AND APPELLANT (AND CLAIMANT AND COUNTERCLAIM-DEFENDANT BEFORE THE COURT OF FIRST INSTANCE) Emboline Inc., Santa Cruz, United States (hereinafter ‘Emboline‘) represented by Dr. Thure Schubert, attorney at law, and other attorneys at law of the law firms Vossius & Partner Patentanwälte Rechtsanwälte mbB, Munich, Germany and KIPA AB, Helsingborg, Sweden RESPONDENT (AND DEFENDANT AND COUNTERCLAIMANT BEFORE THE COURT OF FIRST INSTANCE) AorticLab srl, Samone, Italy (hereinafter ‘AorticLab‘) represented by Sabine Agé, attorney at law of Hoyng Rokh Monegier, Paris, France, and other attorneys at law of the law firm André Roland, Lausanne, Switzerland PATENT AT ISSUE EP 2 129 425 PANEL AND DECIDING JUDGES Panel 2 Rian Kalden, presiding judge and judge-rapporteur Patricia Rombach, legally qualified judge Ingeborg Simonsson, legally qualified judge Renaud Fulconis, technically qualified judge Max Tilmann, technically qualified judge IMPUGNED DECISION OF THE COURT OF FIRST INSTANCE Decision of the Local Division Munich issued on 13 January 2026 in the infringement proceedings UPC_CFI_628/2024 POINT AT ISSUE Clarification of a conditional counterclaim for revocation LANGUAGE OF THE PROCEEDINGS UPC Court of Appeal UPC-CoA-40/2026 2 English REASONS 1. On 16 September 2026, Emboline filed a generic procedural application in relation to a late-filing objection or, alternatively, a request to introduce new evidence and for exchange of further written pleadings pursuant to R. 9.2, 36 and 336 RoP. 2. Emboline requests that Exhibit HRM 26, the written witness statement of Prof. Marco De Carlo, as well as paragraphs 101 – 120 in the Statement of response of the appeal proceedings dated 17 August 2026 (UPC_CoA_40/2026), which relate to the allegations of Prof. Marco De Carlo, are disregarded as late-filed evidence; in the alternative, should the Court not disregard this new evidence as late-filed, Emboline is granted leave to file a further written submission in the appeal proceedings (UPC_CoA_40/2026), limited to responding to this new evidence and related pleadings referred to above, within a time limit of two (2) months from service of the Court of Appeal's corresponding order. 3. Emboline shall have the opportunity to comment on Exhibit HRM 26 and the Statement of response at the oral hearing, including, should it wish to do so, to further clarify which part or parts of that exhibit and the Statement of response should be disregarded and why. 4. The Court does not allow further pleadings or submission of exhibits at this stage. 5. Accordingly, the written procedure shall be closed. 6. The judge-rapporteur considers that no interim conference shall be held (239.1 RoP). ORDER I. The Court of Appeal dismisses Emboline’s request and does not allow further pleadings or evidence at this stage of the proceedings. II. The judge-rapporteur intends to close the written procedure on 29 September 2026. An interim conference will not be held. Issued on 28 September 2026 3 Rian Kalden, presiding judge and judge-rapporteur Patricia Rombach, legally qualified judge Ingeborg Simonsson, legally qualified judge Renaud Fulconis, technically qualified judge Max Tilmann, technically qualified judge
Key Holdings
- The Court of Appeal will not allow further written pleadings or submission of exhibits where objections to late filed evidence can be addressed during the oral hearing.
- A party requesting that late-filed evidence be disregarded must clarify specifically which parts of the evidence and pleadings should be disregarded.
- Objections to late-filed submissions before the Judge-Rapporteur must be presented clearly and concisely to allow prompt pre-hearing determination.
Tags
- Case management
- Late filed evidence
- Judge-Rapporteur
- Written pleadings