Key takeaways
New legal arguments raised on appeal are admissible under R. 222.2 RoP if grounded in facts already submitted before the Court of First Instance
R. 222.2 RoP only allows the Court of Appeal to disregard new facts and evidence, not new legal arguments. Since claim construction is a question of law, the appellant could challenge the first instance’s claim interpretation by raising a new legal argument on appeal.
A deliberate distinction from prior art specifically described in the patent may limit claim construction — provided the patent specification identifies the distinction and the distinguishing feature with sufficient clarity
Where a patent specification expressly describes the disadvantages of a particular prior art embodiment and makes clear by which feature the invention distinguishes itself from it, that distinction may be read as limiting the claim. In the present case, this led the Court to construe “upwardly extending retainment projection” as excluding traditional flexible locking flaps.
A blanket reference to submissions made at first instance is only sufficient on appeal to the extent that the impugned decision did not already address them
Where the Court of First Instance has expressly ruled on a particular ground of attack or a specific piece of prior art, the appellant must specifically explain why that finding is wrong. A mere reservation or general reference to first-instance submissions is insufficient and renders the corresponding part of the appeal inadmissible.
Division
Court of Appeal
UPC number
UPC-CoA-908/2025, UPC-CoA-909/2025, UPC-CoA-918/2025
Type of proceedings
Appeal proceedings against a decision on an infringement action and a counterclaim for revocation
Parties
Claimant in the infringement action, appellant in UPC-CoA-908/2025 and UPC-CoA-909/2025, respondent in UPC-CoA-918/2025: Hartmann Packaging A/S (formerly Brødrene Hartmann A/S)
Defendants in the infringement action, claimants in the counterclaim for revocation, respondents in UPC-CoA-908/2025 and UPC-CoA-909/2025, appellants in UPC-CoA-918/2025: Omni-Pac Ekco GmbH Verpackungsmittel; Omni-Pac GmbH Verpackungsmittel
Patent
EP 2 755 901
Body of legislation / Rules
R. 222.2 RoP, Art. 69 EPC, Protocol on the Interpretation of Art. 69 EPC
