UPC_CoA_2/2026 – Angelalign v Align
- Court
- Court of Appeal
- Date
- Outcome
- Denied
- Sector
- Pharma/Bio
- Decision Type
- PROCEDURAL
Expert Commentary
Discretionary review Facts 1. The plaintiff Align applied for a preliminary injunction (“PI”) before the Local Division Düsseldorf. 2. At Align’s request, on 16 December 2025, the LD Düsseldorf decided to disregard certain non-infringement arguments raised by Angelalign in its rejoinder, and refused Angelalign’s request to file further submissions. 3. On 23 December 2025, Angelalign lodged a request for leave to appeal, which was refused on 29 December 2025 by the Local Division. 4. On 6 January 2026, Angelalign requested discretionary review. 5. The oral hearing in the PI proceedings is scheduled for 14 January 2026. The standing judge 1. The standing judge reiterates the procedural steps for a discretionary review: a. hearing of the other party; b. if the review is allowed: assignment of the case to a panel by the President of the Court of Appeal; c. the standing judge or panel may, if considered necessary, invite parties to lodge further statement of grounds and responses. This is not always necessary; d. the parties have the right to be heard on appeal. 2. It would not be fair to give Align less than 4 working days to answer to the request for discretionary review, as this is the same amount of time Angelalign took to file its request for discretionary review, after having taken a week to lodge its request for leave to appeal. 3. This would require Align to respond by January 12, leaving the Court of Appeal with insufficient time for a decision in view of the oral hearing scheduled for 14 January. 4. Disrupting the schedule of the oral hearing would only be justified if the decision would have been manifestly erroneous. 5. The front loaded character of PI proceedings also allows late-filed arguments and documents to be disregarded. 6. In the request for discretionary review, Angelalign should have put all the information which made clear that the impugned order was manifestly erroneous. 7. The request is dismissed. Comment 1. The decision of the LD is dated 16 December 2025. The hearing is scheduled on 14 January 2026. Angelalign decided first to enjoy the Xmas dinner and the New Year champagne before setting out, in fairly general terms on paper, why it disagreed with the order of the LD. 2. If Angelalign expected that by enjoying Xmas and the New Year would also allow it to postpone the scheduled hearing, it was mistaken! 3. The lesson is: ask for leave for appeal and discretionary review of an order only where that order is manifestly wrong and, especially where the procedural schedule is tight (like in this case), file the request for leave to appeal and discretionary review promptly, ideally within one or two days after the decision is rendered, setting out all the arguments and evidence from the outset. 4. I note that, in PI proceedings, the LD is not required to allow two rounds of written submissions. 5. Finally, one may ask why this case was filed in the busy Düsseldorf Local Division? The case could have been brought in many less busy Divisions. 6. It is unfortunate that parties (often on the advice of their representatives) decide to overload busy Divisions with cases. In this case, a US claimant represented by a UK firm! If the advice to file in this LD was based on the assumption that “German Divisions are patent friendly”, then that advice is not supported by the statistics!
Full Decision Text
Unified Patent UPC Court of Appeal Court EinheitlichesPatentgericht UPCCoA2/2026 Juridiction unifiée du brevet ORDER of the Court of Appeal of the Unified Patent Court issued on 6 January 2026 request for a discretionary review (R. 220.3 RoP) APPLICANTS (AND DEFENDANTS BEFORE THE COURT OF FIRST INSTANCE) 1. Angelalign Technology Inc., Grand Cayman, Cayman Islands 2. Angelalign France Technology SASU, Paris, France 3. Europe Angelalign Technology B.V., Amsterdam, the Netherlands 4. Angelalign Technology (Germany) GmbH, Köln, Germany 5. Italy Angelalign Technology S.R.L., Milan, Italy 6. Shanghai EA Medical Instruments Co., Ltd., Shanghai, China (hereinafter jointly referred to as “Angelalign”) represented by: Dr. Felix Beck, attorney at law, and other attorneys at law of the law firm Arnold Ruess Rechtsanwälte Part mbB, Düsseldorf, Germany RESPONDENT (AND APPLICANT BEFORE THE COURT OF FIRST INSTANCE) Align Technology, Inc., Arizona, United States (hereinafter referred to as “Align”) represented by: Agathe Michel-de Cazotte, attorney at law, and other attorneys at law of the law firm Carpmaels & Ransford LLP, London, United Kingdom PATENT AT ISSUE EP 4 346 690 DECIDING JUDGE This order has been adopted by Rian Kalden, standing judge IMPUGNED ORDER OF THE COURT OF FIRST INSTANCE Local Division Düsseldorf, 16 December 2025, issued in the application for provisional measures UPCCFI723/2025 LANGUAGE OF THE PROCEEDINGS English SUMMARY OF FACTS 1. The request for discretionary review (R. 220.3 RoP) relates to proceedings for provisional measures which are pending before the Local Division Düsseldorf (UPCCFI723/2025). 2. At the request of Align, on 16 December 2025, the Local Division Düsseldorf issued the impugned procedural order, in which it decided that the non-infringement arguments submitted in paras. 13-24 of the Rejoinder and Exhibit AR 7 shall be disregarded and that Angelalign’s request to allow further pleadings was dismissed. 3. Angelalign lodged a request for leave to appeal the impugned order on 23 December 2025. 4. The Local Division Düsseldorf refused to grant leave to appeal by order of 29 December 2025. 5. On 5 January 2026, Angelalign uploaded a request for discretionary review (R. 220.3 RoP), which was served on the respondent after correction of the deficiencies and payment of the fee by Angelalign on 6 January 2026. 6. The oral hearing in the proceedings for provisional measures at first instance is scheduled for 14 January 2026. PARTY’S REQUEST Angelalign requests the following: 1. The Procedural Order of the Court of First Instance issued on 16 December 2025 is reviewed by the Court of Appeal. 2. The Procedural Order of the Court of First Instance issued on 16 December 2025 is set aside. 3. The Applicant's Request for Procedural Order dated 4 December 2025 is dismissed, or, alternatively, The parties are allowed, within time limits to be specified by the Court, to exchange further written submissions strictly limited to the question of infringement of the patent at issue. REASONS 1. It follows from R. 220.4 RoP that a request for discretionary review can only be allowed after the other party has been heard. If the request is allowed, this sets in motion a procedural appeal under R. 220.2 RoP. This appeal will be heard by the panel to which the appeal will be assigned by the President of the Court of Appeal. The standing judge when allowing the request, or the full panel once the appeal is assigned to it, may consider it necessary that the parties lodge further statements of grounds of appeal and response, in addition to the arguments already exchanged in the request for discretionary review and the response thereto, but this will not always be necessary (UPCCoA486/2023, 21 March 2024, par. 16, Netgear v Huawei). In appeal proceedings pursuant to R. 220.2 RoP the parties are entitled to an oral hearing. 2. Given the time that Angelalign has taken, first to request leave to appeal (a week) and subsequently to lodge its request for discretionary review (four working days), it would be contrary to the principles of proportionality, fairness and equity, if Align were given a shorter time period to submit its comments to the request within a shorter time period than at least also four days (cf. UPCCoA584/2024, 9 October 2024, para. 16-17, EOFlow v Insulet). 3. Taking into account due process and the interests of the respondents, it would mean that Align would have to lodge its comments by 10 January 2026 and since this is a Saturday effectively by Monday 12 January 2026. Given the right to an oral hearing and the need for the Court of Appeal to prepare, deliberate and issue a decision, it is apparent that a decision could not reasonably be issued prior to the oral hearing in the first-instance proceedings, scheduled for 14 January 2026. 4. In addition, allowing Angelalign’s request would disrupt the schedule of the first-instance proceedings. Such disruption would only be justified if the impugned order were manifestly erroneous. 5. The exclusion of arguments and evidence by the Court at First Instance was not an error per se. The front-loaded nature of UPC proceedings – including the possibility to disregard late-filed arguments and evidence – also applies to proceedings for provisional measures (cf. UPCCoA182/2024, 25 September 2024, para. 114, Mammut v Ortovox), albeit that the short time periods for filing a response, reply or rejoinder may allow for a more lenient approach. 6. Angelalign should thus have substantiated why the impugned order was manifestly erroneous. The facts, evidence and arguments relied on to justify a discretionary review (R. 220.3 RoP in conjunction with R. 221.2 (applied mutatis mutandis)) must be brought forward in the request in such a way that it enables the Respondent to prepare its response and it enables the Court of Appeal to decide on the request, without further information being required. In this regard, references to pleadings and documents in the files at first instance are admissible, provided that the text passages referred to are sufficiently specific (cf. UPCCoA549/2024, 29 October 2024, para. 62, Belkin v Philips). 7. Angelalign’s request does not satisfy this requirement. It has only generally stated that “The Rejoinder included non-infringement arguments comprising three pages and an exhibit (written witness statement) of two pages. These arguments were not already included in the Objection and were (at least in part) made in response to a limiting claim construction set forth by the Applicants in their Reply” without reference to any paragraphs in the first instance pleadings and without any further explanation why (and to what extent) the impugned decision was manifestly erroneous. 8. For the reasons stated above, the request shall be dismissed. ORDER The request is dismissed. Issued on 6 January 2026 Rian Kalden, standing judge
Key Holdings
- Requests for discretionary review must be filed promptly, especially when the procedural schedule is tight, and should include all information demonstrating a decision is 'manifestly erroneous'.
- Disrupting the schedule of an oral hearing is only justified if the impugned decision is 'manifestly erroneous'.
- The front-loaded character of preliminary injunction (PI) proceedings allows late-filed arguments and documents to be disregarded.
- In PI proceedings, the Local Division is not required to allow two rounds of written submissions.
Tags
- Appeal
- Discretion
- Preliminary Injunction
- Time Limits