Advanced Brain Monitoring v Koninklijke Philips (CoA, 22 July 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 22 July 2026, issued in the joined appeals UPC_CoA_63/2026 and UPC_CoA_64/2026, the judge-rapporteur of the Court of Appeal declined to rule in advance on the admissibility of eleven new auxiliary requests filed by Advanced Brain Monitoring with its statement of grounds of appeal. The respondents, Koninklijke Philips, Philips RS North America and Respironics Deutschland, must respond within the ordinary time limit, on admissibility and on the merits alike. The order confirms that the admissibility of new matter on appeal is, as a rule, decided together with the appeal itself.

Question

Should objections to the admissibility of auxiliary requests first filed on appeal be decided before the statement of response, and can the time limit for that statement run from such a decision?

Decision

The Hague Local Division had dismissed the infringement action and revoked EP 2 437 696 on 3 March 2026. The admissibility of the new requests depends on the circumstances of the appeal, including why they were first filed on appeal and whether they could reasonably have been filed earlier, and is better assessed at a later stage (paragraphs 10 to 12). Absent exceptional circumstances, which were not shown, such questions are decided with the appeal as a whole (paragraphs 13 to 15). The respondents know the content of the requests and can address them in their statement of response. A separate admissibility phase would not serve efficiency (paragraphs 16 to 18). The objections were reserved and the request for a three-month time limit running from an admissibility decision was rejected (paragraph 19).

Key points for practice

• A respondent objecting to new auxiliary requests on appeal (Article 73(4) UPCA and Rule 222.2) must deal with both admissibility and merits in its statement of response, without waiting for a preliminary ruling.

Provisions applied

Agreement on a Unified Patent Court

Art. 73(4)

Rules of Procedure

Rule 222.2

Related decisions

• Advanced Brain Monitoring v Koninklijke Philips, 3 March 2026, the Hague Local Division’s decision on the merits under 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.