Barco v Yealink (CoA, 16 October 2026)

Dhenne Avocats · 17 October 2026

Our analysis

Summary

In a decision of 16 October 2026 (UPC_CoA_145/2026), given without an oral hearing with the parties’ consent (Article 52(3) UPCA), the Court of Appeal dismissed Barco’s appeal against the order of the Brussels Local Division of 17 August 2026, which had refused leave to introduce auxiliary request AR6 in the dispute over EP 3 732 827 with two Yealink companies.

Question

May a patentee use a subsequent request to amend under Rule 30.2 RoP to introduce an auxiliary request combining claims neither asserted for infringement nor attacked for revocation?

Decision

The appeal was admissible but dismissed (para. 24). Under Rules 263 and 30.2 RoP, the local division enjoys a discretion guided by front-loading and proportionality. Leave is refused unless the applicant shows that the amendment could not have been made earlier with reasonable diligence and will not unreasonably hinder the other party, and an appellant must show that the discretion was exceeded (paras 25 to 29 and 31). Claims 8 and 9 would survive in any event, and AR6 sought to widen the infringement action rather than defend the patent (paras 32 and 33). Barco had not explained why those claims were absent from its statement of claim (para. 35), nor why AR6 was not filed with AR1 to AR5 on 19 March 2026, when it had filed 267 auxiliary requests before the EPO (paras 36 and 37). Its request of 4 August 2026, more than seven weeks after the EPO hearing, was late, and waiting for the minutes was no convincing reason (para. 38). Admitting it would force the respondents to analyse new claims shortly before the interim conference and the oral hearing (para. 39).

Key points for practice

• Rule 30.2 RoP is a tool for defending the patent against revocation and cannot be used to bring unasserted claims into the infringement case.
• An auxiliary request filed before the EPO should be mirrored promptly before the UPC, since the patentee is expected to coordinate both sets of proceedings.

Provisions applied

Rules of Procedure

Rules 30.2 and 263 RoP

UPC Agreement

Article 52(3) UPCA

Related decisions

• Barco v Yealink, 17 August 2026, a Brussels Local Division decision dated the day of the order under appeal.
• Barco v Yealink, 14 September 2026, a further Brussels Local Division decision between the same parties.
• Yealink v Barco, Court of Appeal, 28 November 2025, an earlier appeal decision between the same parties.

Prepared by Dhenne Avocats from the official decision, consulted on 17 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.