Latest substantive UPC decisions

• The claimants (Yellow Sphere and Hartwich) brought an infringement claim against the defendants in relation to their product-by-process patent. This patent covered a vehicle frame with one part made of foam resin, as well as a manufacturing process for it. The defendants counterclaimed for revocation, claiming it lacked reproducibility, novelty and inventive step.
• The Düsseldorf LD rejected the revocation claim and found that the defendants had infringed the patent.
• In relation to the revocation claim the court found that, contrary to the defendants' arguments, with product-by-process claims the invention usually did not consist of the process as such, but in the technical properties conferred on the product by the process. Therefore, in principle, the process served only to define the product. The decisive factor was how the skilled person understood the information on the method of manufacture and what conclusions they drew from this for the nature of the product. If the manufacturing process lead to properties in the product that could only be achieved by that process and those properties can be determined in the finished product, the patent would be limited to products that could be produced that way.
• The Düsseldorf LD granted an injunction, ordered the defendants to provide the claimants with information about the acts of infringement (including distribution channels and quantities manufactured), recall and remove the infringing products from distribution channels, and destroy the products, along with provisional damages.
• Separately, the court also found that the UPC has jurisdiction over financial compensation claims related to the use of published European Patent applications. As this compensation was not provided for in the UPCA, the court applied Article 67 EPC. However, the claimant seeking such compensation had to set out the requirements for each country in which they were seeking compensation. Here, the claimants complied with this requirement for Germany and therefore could claim appropriate compensation under the German rules from a person who used the subject matter of the application even though they knew or should have known that the invention was the subject of a European Patent application. The claimants did not meet this requirement for the other countries at issue and therefore the claim with respect to those countries was dismissed.

This analysis is based on a machine translation of a decision not available in English.

• Dainese brought an action against Alpinestars and other defendants, alleging infringement of its European Patent validated in various UPC territories and a non-UPC territory, Spain.
• Alpinestars, which is domiciled in Italy, filed a preliminary objection challenging the UPC's jurisdiction to decide on the alleged infringement of the Spanish designation.
• Applying the recast Brussels Regulation and the CJEU's interpretation of it in BSH v Electrolux, the court confirmed that it had jurisdiction to adjudicate on infringement issues relating to European Patents validated in non-UPC countries (in this case, the Spanish designation) when the defendant was domiciled in a UPC member state.
• Interestingly, the court stated that this principle had already been established by an earlier decision by virtue of the Düsseldorf LD's decision in Fujifilm v Kodak, which concerned a challenge to the UPC's jurisdiction over infringement claims relating to the UK designation of a European Patent.
• See our Insight for more detail on this decision.

• The Munich LD held that Edwards' divisional patent relating to an implantable prosthetic heart valve was valid and infringed by the three Meril defendants.
• Meril raised a preliminary objection based on Edwards seeking a decision "within the area of application of the UPCA as of the date of the hearing, excluding Malta". Edwards' phrasing was held not to be specific enough; it was the responsibility of the claimant to specify the exact territories for which relief was sought. Edwards made an auxiliary request specifying the countries in question and this was considered admissible.
• Meril also argued that the Munich LD did not have jurisdiction over Meril Italy. The Munich LD held that Article 33(1)(b) UPCA allows multiple defendants to be sued at their domicile, their principal place of business or, if not those, at the place of business of one of the defendants provided that they have a commercial relationship and the action concerns the same alleged infringement. In the case of an European Patent without unitary effect, the same alleged infringement covers a situation where multiple defendants are accused of infringing the relevant national designations of the same European Patent by the same product or process. This interpretation avoids undermining the UPCA's goal of avoiding a fragmented European patent litigation landscape.
• Here, the three Meril defendants were accused of the same infringement and there was a sufficient commercial relationship as members of the same group of companies.
• As for validity of the patent, Meril made invalidity claims based on added matter, lack of novelty and inventive step and enablement. All of these were unsuccessful. With respect to the Munich LD's obviousness analysis, it stated that the EPO's problem-solution approach was to be primarily applied to the extent feasible in assessing obviousness because it promoted legal certainty and "further aligns" the UPC's jurisprudence with that of the EPO and its Boards of Appeal.
• The relief sought was held to be widely justified, with the Munich LD confirming that Edwards was entitled to injunctive relief (with this order not applying to Meril's XL size devices as was the case in an earlier decision), damages, a declaration of infringement and a claim for information relating to distribution channels. Edwards was said to have a legitimate interest in the publication of the decision in five public media outlets.

• The Milan CD had earlier rejected Insulet's request for provisional measures against EOFlow, with Insulet to bear the costs of the proceedings. The Milan CD dismissed EOFlow's application for a cost decision without examination of the substance. EOFlow filed for leave to appeal under Rule 221 RoP. EOFlow then requested withdrawal of its appeal application and did not seek a decision on costs of its appeal application. Insulet agreed to the withdrawal of the application and also did not seek a decision on costs of the appeal application.
• The Court of Appeal held that under  Rule 265 RoP, as long as there is no final decision in an action, the claimant may apply to withdraw their action. This applies mutatis mutandis to a party seeking leave to appeal a costs decision. As such, the Court of Appeal permitted EOFlow's withdrawal of its appeal application with the agreement of the parties.

• Corning commenced infringement proceedings relating to LCD-TVs against three different groups of companies (TCL, Hisense and LG) in this set of proceedings before the Mannheim LD. Corning also initiated separate proceedings against the alleged manufacturer of the glass also before the Mannheim LD.
• The defendants in this action applied for a stay under Rule 295(m) RoP until there is a final and binding decision in the proceedings relating to the alleged manufacturer. As an auxiliary request, the defendants requested that both sets of proceedings be combined and stayed until overseas service was effected on the alleged manufacturer.
• The Mannheim LD held that Corning was not obliged to sue the defendants in these proceedings jointly with the defendants in the other proceedings. There is no obligation in the UPC to sue original equipment manufacturers (OEMs) and suppliers in a single set of proceedings. The court noted that it was common practice to start the proceedings separately particularly where service of a statement of claim may be more problematic with respect to one of the defendants. Even if filed jointly, it was usually the practice of the LD to separate the proceedings to allow at least part of an action to move forward while overseas service is being effected.

• Fujifilm alleged that the defendants had infringed its patent relating to planographic printing plates, which was still in force in Germany and the UK (all other parts had lapsed before the UPCA entered into force). The defendants counterclaimed for revocation. This decision dealt with infringement of the German part. The UK part was subject to separate proceedings, but a request for a UK interim injunction was rejected in the meantime.
• The court found that the UPC had no jurisdiction over the national parts of UPCA member states that had already lapsed before 1 June 2023. The same reasoning applied to national parts of non-UPCA-member states.
• The patent was found to be valid and infringed. The defendants were not able to rely on a prior use defence as the facts that had been submitted in the statement of defence and counterclaim did not sufficiently substantiate that the defendants' printing plate precursors on which they relied were publicly available before the relevant priority date.

• JingAo made a request to adjust its infringement claim in line with its application to amend its patent under Rule 30 RoP, which was granted by the Munich LD.
• In an application to amend a patent, Rule 30 RoP does not restrict a patentee to the requirement that the application and auxiliary request must directly relate to the grounds for invalidity in the revocation counterclaim.
• If dependent patent claims are made the subject of an auxiliary request, it is possible for a patentee to make corresponding amendments to their infringement action.
• The purpose of the RoP is to synchronise UPC proceedings with EPO proceedings and this can only happen if it is possible to introduce claim versions amended by the EPO into UPC infringement proceedings.

• Tiru is the proprietor of a patent relating to technology implemented in waste incineration furnaces. Tiru filed parallel requests for evidence preservation and inspections of the premises against both Maguin and Valinea in the Paris LD before any proceedings on the merits.
• In support of its application, Tiru explained that through a YouTube video it had been informed that an incineration furnace had been installed in October 2024, which was manufactured by Maguin and operated on a Valinea site that appeared to infringe its patent. Tiru argued that evidence seizure and inspections were necessary to confirm whether the features protected by Tiru's patent were reproduced. Tiru made its request on an ex parte basis. The orders were granted and carried out.
• Maguin and Valinea requested reviews of the orders. They argued that the orders should be lifted because Tiru's ex parte request was unjustified due to an absence of urgency, Tiru breached its duty of loyalty by deliberately concealing information that was likely to influence the issuance of the measures ex parte, Tiru made the application too late, and there was no risk of destruction of evidence.
• The Paris LD rejected both Maguin's and Valinea's requests. The court held that Maguin and Valinea failed to demonstrate that Tiru had breached its duty of loyalty provided for in Rule 192.3 RoP. It also noted that the ex parte application was justified because of the principle of ensuring the effectiveness of the measures for the preservation of evidence. The Paris LD said that it was necessary for the parallel operations at Maguin and Valinea to take place at the same time and the imminent commissioning of the furnace meant that both inspections needed to take place quickly. The judge granting the order had correctly applied the principle of effectiveness, along with the principles of justice, equity and proportionality.
• Tiru's application was made two months after it became aware of the YouTube video and the Paris LD held that this was a reasonable time period in which to compile the evidence preservation applications.
• The decision relating to the joined action is available in full here.

This analysis is based on a machine translation of a decision not available in English.

• Barco brought an application for provisional measures, alleging Yealink had infringed its patent for a method and system for meeting room technology. The Brussels LD refused the application for a preliminary injunction, finding that Barco did not act with the required urgency.
• The timeline of events that led to the proceedings were important to the court's decision. Barco sent Yealink a warning letter in May 2023. Barco then filed proceedings in the USA relating to the same products, but different patents in November 2023. The EPO communication to grant the patent in suit (EP 827) came on 6 May 2024 and unitary effect was registered on 23 August 2024.
• Barco made a test purchase in August 2024, and received results of its infringement analysis on 17 September 2024. The application for provisional measures was then filed on 2 October 2024. Yealink lodged a preliminary objection to the Brussels LD's competence on 17 December 2024. Barco argued that Yealink had filed its preliminary objection too late and therefore the international jurisdiction and territorial competence of the Brussels LD should be considered accepted.
• First, the court decided that Yealink's preliminary objection was admissible but ultimately unsuccessful. The objection was admissible because the Rule 19.1(b) RoP time limit to file an objection to the application (including any preliminary objections) does not apply to applications for provisional measures, but only relates to proceedings on the merits. The Brussels LD noted that this is because preliminary injunction proceedings are on an accelerated timeline and there is not a requirement to distinguish between preliminary objections and other objections regarding the merits of the case.
• Yealink objected to the territorial competence of the Brussels LD, arguing that Barco had not “sufficiently explained why the actual or threatened infringement has occurred or is likely to occur specifically in Belgium (…) and not in another Contracting State”. The court decided that the special jurisdiction rules set out in the recast Brussels Regulation (Article 7(2) (the place where the harmful event has occurred or may occur, which acts as a "derogation" from the general rule of jurisdiction of the place of the defendant's domicile) are applied differently compared to the interpretation of Article 33(1)(a) and 33(1)(b) UPCA (which deal with the competence of the division of the UPC's Court of First Instance).
• Article 33(1) UPCA makes forum shopping possible in a way that the recast Brussels Regulation does not. This means that the UPCA allows for the parallel competence of multiple LDs. As such, Yealink's argument that Barco did not provide any argument as to why another LD would not have competence could be disregarded.
• On that basis. the Brussels LD found that it was competent to hear the case pursuant to Article 33(1)(a) because Barco had sufficiently proved that Yealink actively promoted and offered its devices in Belgium, and thus "the actual or threatened infringement had occurred or may occur" in Belgium.
• In considering the conditions that must be met for the grant of a preliminary injunction, the court explained that the conditions are cumulative. The court decided that Barco did not act with the required urgency and therefore it was not necessary to consider the other conditions for grant of a preliminary injunction (including validity and infringement).
• Barco had not explained the date on which it became aware of the alleged infringement, so the court relied on the objective timeline. The Brussels LD took the mention of the grant of EP 827 as the starting point for the urgency requirement because Barco could have filed a UPC infringement action after that date. The court also referenced a statement in the US litigation that "the infringing products have been on the market for a long time”. Therefore, it decided that Barco taking 2 and a half months before filing the preliminary injunction application did not fulfil the urgency requirement.

• The Paris LD applied the CJEU's reasoning in BSH v Electrolux in ruling on a preliminary objection concerning its jurisdiction to determine an infringement claim relating to patents designated in countries outside of the UPC, namely: Spain (non-UPC, EU state), Switzerland (non-UPC, non-EU, Lugano state), and the UK (non-UPC, non-EU state).
• IMC Créations alleged infringements of its patent granted with unitary effect and the Spanish, Swiss and British designations by a company domiciled in a UPC member state (France) and a company domiciled in a non-UPC, non-EU member state (Switzerland). The defendants, Mul-T-Lock France and Mul-T-Lock Switzerland contested the UPC's jurisdiction to hear the action for infringement of the British, Spanish and Swiss designations and its territorial reach over the Swiss defendant.
• The Paris LD held that the CJEU decision straightforwardly applied to the Spanish and UK designations and was transposable to the Swiss designation because Switzerland is a Lugano Convention signatory (which establishes similar principles of jurisdiction as the recast Brussels Regulation).
• As such, the Paris LD held that it has jurisdiction to hear the infringement actions relating to the Spanish and Swiss designations, with the possibility of staying the proceedings if the national courts are seised in validity actions and there is a reasonable, non-negligible risk the patents will be declared invalid.
• With respect to the UK designation, the Paris LD held that it is competent to hear the infringement proceedings and make a decision on validity if raised by way of defence, provided that the validity decision only has inter partes effect.
• However, the Paris LD went further than Electrolux by deciding that it has territorial competence over a Swiss domiciled defendant "due to the domicile of one of the defendants in France". This means that, for the first time, the UPC has held that it is competent to determine the alleged infringement of non-UP patents by a defendant not domiciled in the UPC or an EU Member State. This has potentially wide-reaching consequences.
• For more information on this decision, see our Insight here.

This analysis is based on a machine translation of a decision not available in English.

• This case was related to other cases in the Mannheim LD concerning the same parties and different designations of the same patent. These cases dealt with alleged infringement of Hurom's patent relating to a juice extractor by the defendants' sale of the AUTO10 juicer. There was no revocation counterclaim.
• This decision dealt with jurisdiction over alleged infringements in Turkey. The first related case concerned possible infringements in UPCA contracting member states. The second related case concerned alleged infringements in EU, non-UPCA contracting member states and non-EU member states and was separated pending the CJEU's decision in BSH v Electrolux.
• The Mannheim LD decided that it did not have jurisdiction over the alleged Turkish infringements regardless of the outcome of Electrolux because of deficiencies in Hurom's pleadings. For example, it did not allege sufficient facts to fulfil the requirement of Article 7(2) recast Brussels Regulation, even if acts committed within the UPC territory that resulted in infringement in Turkey were covered by the provision.
• Moreover, international jurisdiction did not follow from Article 71b(3) recast Brussels Regulation, where competence based on the place where the damage occurred is limited to damage that arose in the respective member state. Thus, it requires a sufficient connection with a UPC member state. The mere location of a sales branch of the defendant in Germany was not sufficient. Hurom did not sufficiently allege that the European sales brand had anything to do with potential, actual or threatened infringing acts with respect to the Turkish part of the patent in suit.
• The decision relating to the second defendant is available here.

• This case was related to other cases in the Mannheim LD concerning the same parties and different designations of the same patent. These cases dealt with the alleged infringement of Hurom's patent relating to a juice extractor by the defendants' sale of the AUTO10 juicer. There was no revocation counterclaim.
• This decision dealt with alleged infringement in UPCA contracting member states. The first related case concerned possible infringement in Turkey. The second related case concerned alleged infringement in EU, non-UPCA contracting member states and non-EU member states and was separated pending the CJEU's decision in BSH v Electrolux.
• The defendants disputed the internal competence of the Mannheim LD to hear the case against the second defendant, which was domiciled in France. This was rejected by the court as both defendants had their principal place of business in UPCA contracting member states (Germany and France).
• The defendants also sought to argue that the UPC had any jurisdiction over infringing acts occurring before the entry into force of the UPCA. Contrary to this, the Mannheim LD held that the court does have jurisdiction on the basis that Article 3(c) UPCA establishes jurisdiction for any European Patent that had not elapsed at the date of entry into force of the UPCA.
• For acts committed after entry into force of the UPCA, the substantive law was as laid down in the UPCA. For acts committed before entry into force of the UPCA, substantive national laws applied. To ongoing acts started before the entry into force of the UPCA and continued after entry, the substantive law was also the UPCA.
• To assess whether an act is "ongoing", an overly formalistic approach must not be applied and a natural perspective must be adopted. The court held that "such acts can be referred to as separable acts, but which looks at the scenario from a normative and therefore evaluative perspective."
• The defendants were both held to have infringed the patent. Contrary to Hurom's arguments, infringement acts committed in France and Germany did not extend the remedies sought to other UPCA contracting member states. Article 34 UPCA does not extend the territorial scope of the remedies to other relevant UPCA member states once infringement is established for one member state only; rather, it relates to the scope of the effect of the decisions.
• The court granted an injunction preventing the infringing juicer from being placed on the market in Germany, France, Denmark, Italy and the Netherlands (the latter three countries where there had been previous infringement and there was a risk it could happen again). The defendants were also ordered to pay damages, to give information about infringing acts including distribution channels, to destroy and recall any infringing products (from commercial customers), and to remove the products from any channels of commerce.

• Tridonic alleged that the defendants had infringed its patent concerning LED lighting by the sale of LED drivers in Germany and France. The defendants denied infringement and made an invalidity counterclaim, alleging lack of novelty and lack of inventive step.
• In relation to Tridonic's infringement claim, the Düsseldorf LD found that the attacked embodiment did not infringe the patent because it did not have the decoupling element as specified in claim 7. The court concluded that the capacitor used in the defendants' product did not fully separate the signal paths, which was necessary for the claimed decoupling function.
• As for the defendants' invalidity counterclaim, the Düsseldorf LD found that the patent claims 7 to 10 were both novel and involved an inventive step. The counterclaim was therefore dismissed.

This analysis is based on a machine translation of a decision not available in English.

• 10x Genomics filed an infringement action against Vizgen at the Hamburg LD in June 2023. Vizgen made three requests for the production of documents under Rule 190.1 RoP, which the Hamburg LD granted on 22 October, 1 November and 20 December 2024 respectively. 10x Genomics appealed against the orders of the Hamburg LD.
• 10x Genomics later requested that its appeal be withdrawn, which Vizgen agreed to.
• The Court of Appeal held that under Rule 265 RoP a claimant may request the withdrawal of their action provided that a final decision has not yet been issued. This applies equally to an appellant seeking to withdraw their appeal.

This analysis is based on a machine translation of a decision not available in English.

• Syngenta alleged that Sumi Agro had infringed its patent relating to a herbicidal composition. Sumi Agro argued that its herbicidal product with an alleged fatty acid composition was not actually marketed within the UPC territory. It also challenged the validity of Syngenta's patent. The parties also had opposing views as to the necessity of provisional measures, urgency, weighing of interests, the territorial scope of an injunction, and the need for security.
• At first instance, the Munich LD held that it was more likely than not that Sumi Agro's contested embodiment infringed Syngenta's patent and it was convinced of the novelty of the patent with the sufficient certainty required. Sumi Agro's arguments on lack of inventive step, plausibility and AgrEvo obviousness were rejected. As a result, the Munich LD held that provisional measures were necessary and that the balance of interests was in favour of Syngenta.
• Sumi Agro appealed the Munich LD's decision, requesting that the provisional measures be dismissed. In the Court of Appeal, Sumi Agro contended that the contested embodiment that the Munich LD considered was no longer on the market anywhere. It was therefore  necessary for the Court of Appeal to consider potential infringement by Sumi Agro's later embodiment.
• With respect to this later embodiment, the Court of Appeal held that Syngenta had also made out that it was more credible than not that it infringed its patent. The Court of Appeal agreed with the Munich LD's conclusion that Syngenta's patent was novel and that Sumi Agro's arguments did not call into question the inventiveness of the patent.
• As for the application for provisional measures, the Court of Appeal considered necessity. Since it had found that there was a sufficient degree of certainty to conclude Sumi Agro's product infringed Syngenta's patent, the Court of Appeal assessed necessity from the starting point that Syngenta's and Sumi Agro's products were directly competing. Therefore, the market would move from a situation where only one product was available to a situation with two competing products.
• The Court of Appeal held that this would not only cause price pressure but would also lead to permanent price erosion, even if a permanent injunction was later obtained. On this basis, it held that a preliminary injunction was needed. Syngenta was also found to have acted with the requisite level of urgency to justify the preliminary injunction and the weighing of interests was in Syngenta's favour.

• 10x Genomics brought an infringement action against Curio in the Düsseldorf LD. The Düsseldorf LD ordered Curio to provide security for legal costs and other expenses but granted leave to appeal that order. Curio made an appeal, to which 10x Genomic filed a statement of response. The judge rapporteur then issued a procedural order and in response to this Curio filed an application to withdraw its appeal pursuant to Rule 265 RoP.
• The Court of Appeal held that as long as there is no final decision in an action, a claimant may, pursuant to Rule 265.1 RoP, apply to withdraw their action. The application to withdraw shall not be permitted if the other party has a legitimate interest in the action being decided by the court. 10x Genomics had not filed any comments on Curio's request to withdraw its appeal and therefore was not considered to have a legitimate interest in the appeal being decided. As such, Curio's application was permitted.

• Esko brought a claim for patent infringement against XSYS. Its claim initially excluded the Netherlands due to the national patent's lapse for non-payment of fees. The patent was subsequently restored and Esko sought an order to amend its infringement claim to include the Netherlands.
• Meanwhile, XSYS filed a counterclaim for revocation, which included the Netherlands, and opposed Esko's request to amend its case, arguing that the amendment could have been made earlier with reasonable diligence.
• The court interpreted Rule 263.2 RoP as providing strict requirements for refusing applications to amend a claim. Rules 263.2(a) and (b) RoP are cumulative requirements, which, if not met, mean that the court must refuse the application. It has no discretion in this regard.
• The court rejected Esko's application to amend its case, as it failed to provide a convincing reason for the delay in filing the amendment application. From the date on which it became aware of the restoration of the Dutch patent, it could and should have addressed the question of whether it needed to amend its case. Instead, Esko's request was not filed for over two months from the time of the restoration and after XSYS' deadline to file its statement of defence. On this basis, Esko failed to satisfy Rule 263.2(a) RoP as the court held that the amendment application could have been made at an earlier stage.

• Biolitec brought an action for provisional measures (preliminary injunction) in the Düsseldorf LD against two Lightguide companies for alleged infringement of its European patent with unitary effect relating to laser fibres for minimally invasive laser therapies. The parties and their groups had been involved in patent disputes in several European countries since 2016 in relation to other Lightguide devices and another Biolitec patent from the same patent family.
• At first instance, the Düsseldorf LD dismissed Biolitec's preliminary injunction application without hearing the defendant due to lack of necessity. Biolitec had not demonstrated that the preliminary injunction was objectively necessary, that compensation in the main action would not be sufficient, and that potential harm would be caused to it as a result of the preliminary injunction not being granted.
• The Court of Appeal upheld the Düsseldorf LD's decision. It explained that provisional measures proceedings are "short and fast" with an "expedited procedure", meaning that they do not allow for full examination of the applicant's entitlement to commence proceedings, validity of the patent and the alleged infringement. As such, the expedited provisional measures procedure cannot be used if proceedings on the merits can be awaited. If proceedings on the merits can be awaited, then provisional measures are not necessary as proceedings on the merits offer more procedural safeguards.
• In weighing up the interests of the parties pursuant to Article 62(2) UPCA and Rule 211.3 RoP, the court will take into account the potential harm for either of the parties resulting from granting or refusing the preliminary injunction. The court will not only take into account the harm for either party, but also "the time factor"; that is, whether it is possible to await proceedings on the merits. Where any delay would cause irreparable harm to the patent owner, provisional measures are considered necessary (although irreparable harm is not a necessary condition for the ordering of provisional measures).
• The Court of Appeal held that the Düsseldorf LD rightly found that Biolitec had failed to demonstrate that a preliminary injunction was necessary to protect its market share or prices or for any other purpose that could not await a decision on the merits.
• The Court of Appeal stated that the fact that the Düsseldorf LD did not make any explicit findings on entitlement, validity or infringement did not disadvantage Biolitec in the discretionary weighing of the parties' interests. The Düsseldorf LD had "implicitly assumed" that the application must be rejected even if the court had been convinced with a sufficient degree of certainty as to entitlement, validity and infringement, because the necessity of the preliminary injunction had not been proved.
• In an attempt to justify the necessity of the preliminary injunction, Biolitec raised a new price erosion argument during the oral hearing at the Court of Appeal. Pursuant to Rule 222.2 RoP, requests, facts and evidence not submitted by a party during proceeding before the Court of First Instance may be disregarded by the Court of Appeal.
• In exercising its discretion in this regard, the Court of Appeal shall take into account whether the new submissions could not reasonably have been made during proceedings before the Court of First Instance (Rule 222.2(a) RoP) and the relevance of the new submissions for the decision on appeal (Rule 222.2(b) RoP). These points must be especially considered "when new requests, facts and evidence are introduced at the very last step of the oral hearing". The Court of Appeal decided that Biolitec had not justified why the price erosion argument could not reasonably have been raised during the first instance proceedings. The point was disregarded and Biolitec's appeal was rejected.