NVIDIA v BF exaQC (CoA, 28 September 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 28 September 2026 (UPC_CoA_140/2026), the Court of Appeal granted NVIDIA re-establishment of its right to appeal against the Munich Local Division’s decision of 11 March 2026, which had dismissed BF exaQC and ParTec’s infringement action (EP 3 743 812) without ruling on the counterclaim for revocation brought on a conditional basis. The notice and statement of grounds of appeal filed on 17 August 2026 were declared admissible. The order draws the consequences of the clarification given on 16 July 2026 in Emboline v AorticLab: a party whose conditional counterclaim was not decided may appeal.

Question

Can a defendant that did not appeal within the Rule 224 RoP time limits, being unaware that it could do so, be re-established in its right to appeal?

Decision

Before the clarification, it was not obvious that a conditional counterclaimant whose counterclaim had not been examined had standing to appeal (paragraph 12), NVIDIA could reasonably assume that it could raise its counterclaim in its statement of response or by cross-appeal (Rule 237 RoP, paragraph 13). Since the clarification came after the two-month and four-month periods had expired (paragraph 14), re-establishment was granted (paragraph 15). The application and fee were filed within one month of the clarifying order, together with the omitted act (Rule 320.4 RoP, paragraph 16), and the respondents did not object (paragraph 17). The time limit for the response was set at one month (paragraph 18).

Key points for practice

• A clarification of the case law can justify re-establishment of rights after an appeal deadline has expired, provided the party acts within one month.
• A defendant whose conditional counterclaim was not decided should now lodge its own appeal in time.

Provisions applied

Rules of Procedure

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

Case law cited

Emboline v AorticLab, 16 July 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

Related decisions

• NVIDIA v BF exaQC, 29 September 2026, order on the court fees for this 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.