bioMérieux UK v Labrador Diagnostics (CoA, 17 February 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In an order of 17 February 2026 (UPC_CoA_937/2025 and UPC_CoA_938/2025), the judge-rapporteur of the Court of Appeal refused the bioMérieux companies, appealing the Milan Central Division decision of 23 October 2025 maintaining Labrador Diagnostics’ EP 3 756 767 in amended form, both a stay pending EPO opposition proceedings and an extension of the deadline for the statement of grounds of appeal.

Question

Should appeal proceedings be stayed where the EPO Opposition Division is due to decide shortly and has issued a preliminary opinion favouring revocation, and should the deadline for the grounds of appeal be extended to align with a possible infringement appeal?

Decision

As a rule the court does not stay proceedings, and parallel opposition does not in itself justify an exception (paragraphs 13 and 14). Even where an EPO decision is expected rapidly, a stay remains discretionary (paragraphs 16 to 19): the Opposition Division decision will arrive during the appeal and can be relied on then, so a stay would serve no purpose and cause unjustified delay (paragraphs 20 to 23). An extension under Rule 9.3(a) requires exceptional circumstances, absent here: the appellants do not need the opposition outcome to state their grounds, the infringement appeal is merely possible, and hearing the appeals together under Rule 220.5 would achieve alignment (paragraphs 24 to 29).

Key points for practice

• A preliminary Opposition Division opinion favouring revocation is not enough to stay a UPC revocation appeal (paragraphs 14 to 23).
• Practical point: to coordinate revocation and infringement appeals, ask for a joint hearing under Rule 220.5 rather than a time extension (paragraph 28).

Provisions applied

Agreement on a Unified Patent Court

Art. 33(10)

Rules of Procedure

Rules 9.3(a), 220.5 and 295(a)

Case law cited

Carrier v Bitzer, Court of Appeal, 28 May 2024, Juul v NJOY, Court of Appeal, 30 April 2025 (UPC_CoA_5/2025), Meril v Edwards, Court of Appeal, 21 November 2024, Bega v Washtower, Court of Appeal, 24 September 2025

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.