UPC_ CoA_56/2026 – Optopol v Topcon

Court: Court of Appeal
Date: 2026-04-28
Outcome: Denied
Sector: Other
Decision Type: PROCEDURAL

Expert Commentary

Mistake Facts 1. Topcon started an infringement action before the Local Division (“LD”) Düsseldorf. 2. The Statement of Reply and Defence in response to the counterclaim for revocation and the application to amend the patent had to be filed on 19 January 2026 at the latest. 3. However, this statement was filed on 26 January 2026 due to a mistake of a secretary who mentioned the wrong date in the agenda. 4. On 30 January 2026, Optopol filed an application for a decision by default. 5. On the same day Topcon informed the LD Düsseldorf that it would file an Application for Reestablishment of Rights which was then filed on 21 February stating that the missed deadline was noted on 21 January. 6. The LD read in that application also an R. 9 RoP request and extended the term for the statement retroactively. 7. Optopol asked for a discretionary review. The Court After considering all of Optopol’s arguments, the Court of Appeal sided with the LD and dismissed the application for discretionary review. Comment 1. As a representative, do you really think that if your colleague made a genuine mistake and filed a few days late, you would obtain a decision by default? Would that then be the end of the case, even if you were successful? If the LD looked at the circumstances, corrected the mistake and held that it did not cause any harm for Optopol or delay of the proceedings, would you think that an appeal would be successful? 2. Preambule 2 of the Rules of Procedure states “The Rules shall be applied (…) on the basis of the principles of proportionality, flexibility, fairness and equity”. 3. Instead of wasting the Court’s time and the client’s money, I believe there were better solutions. 4. The case law is clear: certain periods (such as for filing a cost application) cannot be extended (see also R. 198.1 RoP, R. 213 RoP and R. 224.1RoP). Failure to file an application in time in these cases means losing a material right, and the opposing party believes that they cannot be confronted with that right (claim) anymore. However, this is obviously not the case for a procedural period. 5. So, Topcon’s representative has a secretary who mentions the wrong date in the agenda. The representative does not mention also the date in its own agenda (?), and is not using correct procedure to correct the mistake. The representative is then taking a risk by waiting for the last day to file the wrong relief. 6. Optopol’s representative did not see the words “flexibility” and “fairness”. 7. This was not a good day for representatives in general and Topcon must be grateful that the judges did do justice.

Full Decision Text

Order of the Court of Appeal of the Unified Patent Court issued on 28 April 2026 request for a discretionary review (R. 220.3 RoP) APPLICANT (DEFENDANT/COUNTERCLAIMANT BEFORE THE COURT OF FIRST INSTANCE) Optopol Technology Sp. z o.o., Zawiercie, Poland (hereinafter: ‘Applicant’) represented by Dr. Oliver Stöckel, attorney-at-law, SKW Schwarz Rechtsanwälte Steuerberater PartG mbB, Munich, Germany RESPONDENT (CLAIMANT/COUNTERDEFENDANT BEFORE THE COURT OF FIRST INSTANCE) Topcon Corporation, Tokyo, Japan (hereinafter: ‘Respondent’) represented by Dr. Matthias Sonntag, attorney-at-law, Gleiss Lutz Hootz Hirsch PartmbB Rechtsanwälte, Steuerberater, Düsseldorf, Germany PATENT AT ISSUE EP 2 845 534 DECIDING JUDGE This order has been adopted by Bart van den Broek as standing judge. LANGUAGE OF THE PROCEEDINGS English IMPUGNED ORDER OF THE COURT OF FIRST INSTANCE  Procedural Order, Local Division Düsseldorf, dated 1 April 2026  Reference numbers: UPC CFI 705/2025 (Infringement) UPC CFI 1620/2025 (Counterclaim for revocation) UPC Court of Appeal UPC CoA 56/2026 SUMMARY OF FACTS 1. On 4 August 2025, Respondent lodged an infringement action against the Applicant before the Local Division Düsseldorf (“LD” or “LD Düsseldorf”) (UPC CFI 705/2025). 2. On 18 November 2025, Applicant filed its Statement of defence and lodged a Counterclaim for revocation (UPC CFI 1620/2025). 3. The two-month time period according to R. 29(a) RoP for lodging the Reply to the Statement of defence, the Defence to the Counterclaim for revocation, and an Application to amend the patent (hereinafter together: “Reply”) expired on 19 January 2026 (18 January 2026 being a Sunday). 4. Respondent failed to comply with the prescribed time period and lodged their Reply on 26 January 2026. Respondent did not indicate in the Reply that or why it did not meet the deadline. 5. On 30 January 2026, Applicant filed an application for a decision by default in view of the non- observance of the time period (which it had already requested on 18 November 2025 in case Respondent would fail to comply with the prescribed time period). 6. On the same day, 30 January 2026, Respondent announced to the LD Düsseldorf that it intended to file an Application for Re-establishment of rights (R. 320 RoP). 7. Respondent filed the Application for Re-establishment of rights (“Application”) on 21 February 2026 stating that their representatives had become aware of the missed deadline on 21 January 2026. In the Application, Respondent requested the LD to re-establish the time period set forth in R. 29(a) RoP. In the alternative, Respondent requested the LD to exercise its discretion under R. 9.2 RoP such that the Reply would not be disregarded and would be fully taken into consideration by the Court in its decision on the merits. 8. On 25 March 2026, the Applicant responded to the Application and requested the LD to dismiss the Respondent’s requests. 9. On 1 April 2026, the LD Düsseldorf issued a procedural order (“impugned order”) in which it dismissed the Respondent’s application for re-establishment of rights but retroactively extended the time period for lodging the Reply to 26 January 2026 pursuant to R. 9.3(a) RoP. The LD did not grant leave to appeal. 10. On 16 April 2026, the Applicant lodged a request for a discretionary review of the impugned order pursuant to R. 220.3 RoP. On 20 April 2026, the court fees were paid. APPLICANT’S REQUEST 11. The Applicant requests that: I. the impugned order is reviewed by the Court of Appeal II. the impugned order is set aside insofar as it 1. retroactively extends the time period for the submission of the Reply to 26 January 2026, and 2. dismisses the requests for a decision by default by the Applicant of 18 November 2025 and 30 January 2026, and 3. in the alternative to application No. II. 2., dismisses the request by the Applicant of 25 March 2026 to disregard the Respondent’s Reply, and to declare inadmissible and disregard the Respondent’s Reply and all applications, arguments, contents and requests contained therein. III. The Court of Appeal 1. rejects the request made by the Respondent in their brief of 21 February 2026, and 2. orders the Court of First Instance to issue a decision by default as applied for by Applicant on 30 January 2026 a) for the infringement proceedings (UPC CFI 705/2025) as follows: (1.) the action is dismissed, and (2.) Respondent bears the costs of the proceedings including adequate reimbursement of the Applicant’s costs, b) and for the Counterclaim for revocation (UPC CFI 1620/2025), as already applied on 18 November 2025, as follows: (1.) EP 2 845 534 B1 is revoked to the extent of claims 1, 2, 3, 4, 6, 8, 11, 12 and 15 for all Contracting Member States in which EP 2 845 534 B1 has effect, in particular for France, Germany and Italy, and (2.) the Court sends a copy of the decision to the European Patent Office and to the national patent office of any Contracting Member States concerned in accordance with Article 65(5) UPCA, and (3.) Respondent bears the costs of the Counterclaim for revocation including adequate reimbursement of the Applicant’s costs, and 3. in the alternative to application No. III. 2. above, orders the Court of First Instance to declare inadmissible and disregard the Respondent’s Reply and all applications, arguments, contents and requests contained therein. APPLICANT’S SUBMISSIONS (SUMMARY) 12. Applicant is of the opinion that the impugned order is manifestly erroneous for three main reasons: • the Court of First Instance erred in reclassifying the application made by Respondent under R. 320 RoP as an application under R. 9.3(a) RoP, • the Court of First Instance failed to recognize that the grounds provided by Respondent in their application under R. 320 RoP do not satisfy the requirements for the grounds of an application under R. 9.3(a) RoP and do not justify the retroactive extension of the time period for lodging the Reply, and • when exercising its discretion, the Court of First Instance erroneously confined itself to the assessment of a single human error by the assistant of Respondent’s representatives, although the Applicant had demonstrated a seven-fold failure by Respondent’s representatives, and the Court of First instance failed to take into account the bad faith behaviour of the Respondent when dealing with the missed deadline. 13. In addition, Applicant is of the opinion that the impugned order raises the following fundamental legal questions that have not yet been addressed by the Court of Appeal: 1. whether an application under R. 320 RoP can be re-interpreted as a R. 9.3(a) RoP application, 2. whether the reasoning for a R. 320 RoP application can be used as reasoning for a R. 9.3(a) application, 3. what the implications are of bad faith and non-compliance with the rule to file applications for a time period extension as soon as possible, for the application and grant of a retroactive time period extension, and 4. whether the missing of the deadline to file a defence against a Counterclaim for revocation can result in a decision by default. GROUNDS FOR THE ORDER 14. The request for discretionary review is admissible but must be denied. 15. If the Court of First Instance does not allow an appeal against a procedural order it has made (R. 220.2 RoP), the affected party may, pursuant to R. 220.3 RoP, file a request for discretionary review with the Court of Appeal within 15 days. The Court of Appeal (standing judge) shall issue an order on the request in accordance with R. 220.4 RoP. 16. When deciding whether to allow a discretionary review, it should be considered whether the impugned procedural order of the Court of First Instance is manifestly incorrect and whether the impugned order raises a fundamental question of law, that its review is necessary to ensure a consistent application and interpretation of the Rules of Procedure or any other objective of the discretionary review (CoA, UPC CoA 489/2024, 6 September 2024, Motorola v. Ericsson; UPC CoA 805/2025, 1 September 2025, Centripetal v. Keysight). 17. The impugned order is not manifestly incorrect. 18. In accordance with the order of this Court in Angelalign v. Angel Technology (UPC CoA 37/2026, 10 March 2026), the LD dismissed the application for re-establishment of rights pursuant to R. 320 RoP and used its discretion to retroactively extend the time period for lodging the Reply based on R. 9.3(a) RoP. The LD did not exceed its discretionary powers in coming to this decision. 19. A stated above, the Respondent (alternatively) requested the LD in the Application to use its discretion such that the Reply would be fully taken into consideration in the decision on the merits. The LD complied with this request by retroactively extending the time period for lodging the Reply to the date on which the Reply was submitted, i.e. 26 January 2026. Although R. 9.3(a) RoP was not specifically mentioned in the Application, it was not unreasonable for the LD to interpret the Application to include such a request, in particular in view of the alternative request in the Application to use its discretionary powers to allow the Reply dated 26 January 2026 into the proceedings. 20. Contrary to Applicant’s assertion, the reasoning contained in the Application was equally applicable to the (implicit) request for a retroactive time period extension pursuant to R. 9.3(a) RoP. Based on this reasoning and on the submitted evidence (in particular the chapter "Deadlines and Deadline Control" of the Gleiss Lutz Handbuch and the various statements of Respondent’s representatives and their assistant) the LD concluded that a system of checks had been put into place within the representatives’ law firm and that despite this system, the deadline was missed by a human error, in particular by the assistant of Respondent’s representatives incorrectly noting the prescribed time period in the system on which the Respondent’s representatives relied. In the opinion of the Court of Appeal, the LD’s determination that this was an excusable human error is understandable and reasonable in view of the facts and evidence of the case (cf. UPC CoA 37/2026, 10 March 2026, Angelalign v. Angel technology, para. 32). 21. This also applies to the decision of the LD regarding the timing of the (implicit) request for a retroactive extension of the time period. Although the Court of Appeal agrees that such a request should generally be made as soon as possible, it was not unreasonable for the LD to consider it excusable that in this case, wherein the order of this Court in Angelalign v. Angel Technology was not yet issued, the request was made in the Application within the time period set out in R. 320 RoP. 22. Moreover, when exercising its discretion, the LD correctly considered that the extension of the time period would not cause any delay in the proceedings. The Applicant was able to respond to the Reply within the time period specified in the RoP and the oral hearing (to be held on 15 December 2026) was not affected by the extension. Also in this respect, the Local Division did not exceed its discretionary powers by retroactively extending the time period for the Reply to 26 January 2026. 23. Finally, in the impugned order, the LD took note of the Applicant’s allegation of bad faith (paragraph 9) and its assertion that there were more human failures than the single human error by the representative’s assistant (paragraph 10). The fact that these circumstances were not explicitly mentioned in the LD’s discretionary assessment does not make the impugned order manifestly erroneous. It merely means that the LD weighed the facts differently than the Applicant considers to be correct. 24. The other requirements for a review of the discretionary decision are also not apparent in the present case. The “fundamental legal questions” mentioned by the Applicant have been addressed by the above considerations (questions 1-3) or are deemed irrelevant in view of these (question 4). ORDER The request for discretionary review is dismissed. This order was issued on 28 April 2026 Bart van den Broek, standing judge

Key Holdings

The UPC applies principles of proportionality, flexibility, fairness, and equity (Preamble 2 RoP) in procedural matters.
Procedural deadlines can be extended for genuine mistakes that cause no harm or delay to the proceedings, unlike deadlines for material rights (e.g., cost applications).
Appeals on minor procedural errors, especially when the first instance court has corrected a mistake without causing harm, are generally unsuccessful and can be a waste of resources.
Representatives should ensure proper agenda management and timely filing, and understand the distinction between procedural and material deadlines.
The Court will prioritize justice and fairness over strict adherence to procedural technicalities when a genuine mistake has occurred.

Related Rules

Preamble – Preamble to the Agreement on a Unified Patent Court

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