Court of Appeal, September 28, 2026, Procedural Order, UPC_CoA_126/2026

• A defendant who has filed a conditional counterclaim for revocation has a legitimate interest in appealing a first-instance decision refusing to rule on an action for revocation, even after it has been determined that there was no infringement.
• Although a non-decision on the counterclaim matches the counterclaimant’s own request, the counterclaimant still has standing to appeal: a reversal of non-infringement on appeal fulfils the condition, requiring the first-instance non-decision to be set aside.
• The counterclaimant may lodge a conditional appeal pending the infringement claimant’s own appeal; the regular appeal fee becomes due only once that appeal is lodged, otherwise under R. 224 RoP the conditional appeal is deemed not lodged and no fee is owed.

The defendant’s application was filed within six months of the expiry of the appeal time limits (R. 224.1(a), 224.2(a) RoP) and within one month of removal of the cause of non-observance (R. 320.2 RoP), and was accompanied by the Statement of appeal and grounds of appeal, satisfying R. 320.4 RoP.

Given prior unclear case law on the “adversely affected” standard under R. 220.1 RoP, the defendant could reasonably assume it either lacked standing to appeal or could still pursue its counterclaim via a Statement of response or cross-appeal under R. 237 RoP. This reasonable assumption persisted until the Court of Appeal’s clarifying order of 16 July 2026 (Emboline v. AorticLab (UPC-CoA-40/2026), so the defendant could not have been expected to appeal earlier.

The Court declined to shorten the period despite the judge-rapporteur’s initial proposal, and also rejected the respondent’s request for an extension calculated from service of the re-establishment order, as this would exceed the statutory three-month limit without justification.