CoA Luxembourg, June 19, 2025, application for rehearing, UPC_CoA_402/2024, UPC_CoA_405/2024

Art. 81(1) UPCA offers the possibility to request a rehearing after a final decision when, it is based on an act which has been held to constitute a criminal offence or in the event of a fundamental procedural defect. These circumstances must not have been known or, in case of a fundamental procedural defect, if known, already objected to during the proceedings leading to the decision or on appeal, except where such objection could not have been raised during the proceedings before the Court of First Instance or the Court of Appeal.

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.

In order to qualify as a ground for rehearing, a procedural defect must be so fundamental that it is intolerable for the legal system and overriding the principle that proceedings which have led to a final decision should not be re-opened in the interest of legal certainty.

A defect may only be considered fundamental if it can be established that without the defect the same decision would not have been taken. It is for the applicant to show this.

There is not in general an obligation for the Court to hear any of the experts whose written opinions have been submitted as evidence by a party. This is even less so in proceedings for provisional measures. Pursuant to R. 210.2 RoP last sentence, Part 2 of the Rules on Evidence shall be applicable to these proceedings only to the extent determined by the Court.

The right to be heard is reflected in Art. 76(2) UPCA, which provides that decisions on the merits may only be based on grounds, facts and evidence, which were submitted by the parties or introduced into the procedure by an order of the Court and on which the parties have had an opportunity to present their comments.

Even though Art. 76(2) UPCA refers to decisions on the merits, the right to be heard also applies in principle to proceedings for provisional measures, albeit that in such proceedings a less stringent standard applies or, depending on the circumstances, the principle may not apply at all (e.g., ex parte proceedings).

Unless the decision could not have been objectively foreseen and would come as a surprise to the well informed representative, e.g. for being inconsistent with and fundamentally deviating from established case law or based on case law not yet available at the time of the oral hearing, the right to be heard does not require that the Court notifies the parties in advance of its (preliminary) opinion on any issue in dispute between the parties and / or the basis therefore, either in an interim conference or in a preliminary opinion issued prior to the oral hearing. The UPCA and RoP do not provide for such a system. The Court may provide a preliminary introduction to the action (R. 112.4 RoP) which may contain a preliminary opinion but is not held to do so.

Although the Court of Appeal is not bound by case law of the European Patent Office, there is reason to consider Techincal Boards of Appeal decisions and – even more so –
Enlarged Board of Appeal decisions – since these Boards apply the same substantive law provisions of the European Patent Convention (EPC) as the Court.

Where a statement of fact is not specifically contested by any party, it follows from R. 171.2 RoP that it shall be held to be true as between the parties. However, even if there is such an uncontested fact, this does not imply that the legal consequence for which this fact was submitted automatically follows. It still falls upon the Court to decide whether the facts advanced justify such a legal consequence.