Keysight Technologies v Centripetal (CoA, 28 September 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 28 September 2026 (UPC_CoA_126/2026), the Court of Appeal re-established Keysight Technologies’ right to appeal against the Mannheim Local Division’s decision of 5 December 2025, which had dismissed Centripetal’s infringement action (EP 3 821 580) without ruling on the counterclaim for revocation brought on a conditional basis (UPC_CFI_414/2024 and UPC_CFI_729/2024). Keysight’s appeal seeks revocation of the patent should the finding of non-infringement be set aside in Centripetal’s appeal (UPC_CoA_14/2026). Following Emboline v AorticLab, the order confirms that the clarification of 16 July 2026 opens re-establishment to conditional counterclaimants.

Question

Can a defendant whose conditional counterclaim was not decided, and which did not appeal within the Rule 224 RoP time limits, be re-established in its right to appeal despite the patentee’s opposition?

Decision

The missed time limits had caused the loss of a means of redress, and the application was made within the Rule 320.2 RoP periods, together with the omitted acts (paragraphs 10 to 12). Re-establishment requires a cause beyond the party’s control despite all due care (paragraph 13): following the Emboline order of 17 August 2026, Keysight could not reasonably have been expected to appeal before the clarification of 16 July 2026 (paragraphs 14 and 15). As the facts were undisputed, no affidavits were required (Rule 320.3(b) RoP, paragraph 16). Centripetal’s request for a longer time limit for its response was rejected, the three-month period of Rule 235.1 RoP applying with no reason given for departing from it (paragraphs 17 to 19).

Key points for practice

• The patentee’s opposition does not bar re-establishment where the only cause of delay was the legal uncertainty removed on 16 July 2026.
• A request to adjust the time limit for the statement of response must be reasoned.

Provisions applied

Rules of Procedure

Rules 220.1(a), 224.1(a), 224.2(a), 235.1, 237, 320.1, 320.2, 320.3(b) and 320.4

Case law cited

Emboline v AorticLab, 16 July 2026 and 17 August 2026 (UPC_CoA_40/2026), Abbott v Sinocare, 17 April 2026 (UPC_CoA_901/2025), Guardant Health v Sophia Genetics, 2 July 2026 (UPC_CoA_19/2026), all Court of Appeal

Prepared by Dhenne Avocats from the official decision, consulted on 10 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.