Alexion Pharmaceuticals v Amgen Technology (Ireland) Unlimited Company (CoA, 19 June 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By decision of 19 June 2025, the Court of Appeal rejects as not allowable Alexion Pharmaceuticals’ application for rehearing of its order of 20 December 2024, which had upheld the refusal of provisional measures against nine Amgen group companies based on EP 3 167 888 B1 (UPC_CoA_405/2024). The headnote sets out the general principles governing rehearing for a fundamental procedural defect (Art. 81(1)(b) UPCA and Rule 247(c)). The decision matters to any litigant tempted to reopen an appellate ruling: rehearing remains an extraordinary remedy, unavailable for mere disagreement with the Court’s reasoning. On the same day, by a separate decision, the Court rejects Alexion’s parallel application concerning the order made against Samsung Bioepis (UPC_CoA_402/2024).

Facts and procedure

Alexion had sought provisional measures against Amgen before the Hamburg Local Division. The application was refused because the validity of the patent could not be established with sufficient certainty, and the Court of Appeal upheld that refusal on 20 December 2024 (paragraphs 2 and 3). Alexion applied for rehearing, arguing that the Court had applied a completely new standard of claim interpretation without hearing it on the point and had relied on incorrect facts (paragraph 4). Amgen contended that the application was late and therefore inadmissible and, in any event, unfounded (paragraph 6), the Court does not rule on lateness.

The applicable law

Decisions of the Court of Appeal are final and rehearing is an extraordinary remedy, not an appeal (paragraphs 9 and 11). Only a defect so serious as to be intolerable for the legal system justifies rehearing, legal certainty generally prevailing. The applicant must also show that without the defect the same decision would not have been taken, applying the test in the CJEU’s Kamino judgment (paragraphs 12 and 13). The assessment of arguments, evidence and expert opinions is not open to rehearing, even if debatable (paragraphs 14 to 16). The right to be heard (Art. 76(2) UPCA) does not require the Court to disclose its preliminary view in advance, unless the outcome would be unforeseeable to a well-informed representative (paragraphs 23 and 24).

Question

Is the order of 20 December 2024 vitiated by a fundamental procedural defect within Art. 81(1)(b) UPCA and Rule 247(c), so as to justify rehearing?

Decision

The Court answers in the negative (paragraphs 7 and 26). Claim interpretation is a question of law that the Court of Appeal decides freely, without being bound by the parties’ arguments or expert opinions (paragraph 18), decisions of the EPO Boards of Appeal may be taken into account and parties are expected to know that case law and anticipate its application (paragraphs 19 to 21). The Court need not address every argument, and the requirement is lower in provisional measures proceedings (paragraph 22), where the right to be heard applies to a less stringent standard (paragraph 25). The preliminary introduction under Rule 112.4 may, but need not, contain a preliminary opinion (paragraph 24). Alexion’s complaints amount to disagreement with the Court’s reasoning, which is no ground for rehearing (paragraph 27). Alexion bears the costs of the rehearing proceedings (paragraph 29).

Key points for practice

• An applicant for rehearing must show a defect of intolerable seriousness and its causal effect on the outcome: an error alone is not enough.
• A claim interpretation adopted by the Court, even if new to a party, is no surprise where it rests on the law and on EPO case law that parties are expected to know.
• In provisional measures proceedings, the duty to address arguments and the right to be heard are assessed to a less stringent standard.
• Practical point: arguments on claim interpretation, including by reference to EPO decisions, must be fully developed on appeal, since rehearing does not allow that debate to be rerun.

Provisions applied

Agreement on a Unified Patent Court

Art. 76(2) and (3) and Art. 81(1)

Rules of Procedure

Rules 112.4, 207.8, 210.2, 245, 247 and 248

Case law cited

Kodak v Fujifilm, Court of Appeal, 17 April 2025, Insulet v EoFlow, Court of Appeal, 30 April 2025 (UPC_CoA_768/2024).

Related decisions

• Alexion Pharmaceuticals v Amgen (Ireland) Unlimited, 20 December 2024, order targeted by the application for rehearing.
• Alexion Pharmaceuticals v Amgen, 26 June 2024, first-instance refusal of provisional measures.

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.