OrthoApnea v *** (CoA, 26 July 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 26 July 2024 (App_42818/2024), the standing judge of the Court of Appeal refused the application for suspensive effect (Rule 223 RoP) lodged by OrthoApnea and Vivisol B against the Brussels Local Division’s order of 19 July 2024, which had refused to suspend the time limit for their rejoinder, kept at 1 August 2024, in the infringement action on EP 2 331 036 brought by a claimant whose name is redacted (UPC_CFI_376/2023). The remaining requests were referred to the competent panel.

Question

May a defendant obtain, through suspensive effect of its appeal, a suspension of the time limit for its rejoinder until the admissibility of an infringement-by-equivalence argument raised in the reply has been decided?

Decision

The application is admissible: without suspensive effect, the appeal against the refusal to extend the time limit could become devoid of purpose (paragraphs 6 to 9). Suspensive effect under Art. 74(1) UPCA and Rule 223 RoP is granted only in exceptional circumstances (paragraph 7). Urgency is established, since the time limit expires five days later (paragraph 10). The application is nonetheless unfounded: parties must file their pleadings without knowing how they will be assessed, and the refusal to exclude the equivalence argument is not manifestly wrong in view of how the proceedings have developed (paragraphs 11 to 15), the time limit had already been extended by two weeks (paragraph 16). The requests for an extension, for exclusion of the argument and on costs go to the substance of the appeal (paragraphs 17 and 18).

Key points for practice

• Practical point: uncertainty over the admissibility of the other side’s new argument does not justify suspensive effect, the defendant must file within the time limit, in the alternative if need be.

Provisions applied

Agreement on a Unified Patent Court

Art. 74(1)

Rules of Procedure

Rules 223 and 263

Case law cited

ICPillar, Court of Appeal, 19 June 2024 (UPC_CoA_301/2024)

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.