Hartmann Packaging v Omni-Pac Ekco (CFI, 4 March 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 4 March 2025 (UPC_CFI_115/2024 and UPC_CFI_377/2024, ACT_13359/2024, CC_39587/2024), the judge-rapporteur of the Düsseldorf Local Division (Thomas) refused Hartmann Packaging (formerly Brødrene Hartmann), claimant in the infringement action on EP 2 755 901, and the defendants Omni-Pac Ekco and Omni-Pac leave to file a further written pleading on infringement (Rule 36). The order sets limits on the late introduction of an argument of infringement by equivalence.

Question

May a claimant introduce, in its rejoinder on the counterclaim for revocation, a new argument of infringement by equivalence, and then obtain leave for a further pleading on that point?

Decision

Rule 36 allows further pleadings on a reasoned request, but each party normally has two written pleadings on infringement and the discretion requires substantial reasons. Material put forward outside the permitted pleadings is disregarded. The supplementary expert opinion on construction and scope of protection could be included in the rejoinder without leave, since that issue also concerns the counterclaim. The equivalence argument, new and unrelated to the counterclaim, did require prior leave. The request made two months after the rejoinder, on 8 January 2025, was late and would delay the case. It was not adequately justified, and Rule 30.1(b) did not help since the feature had been disputed since the statement of defence. The defendants’ mirror request fell away.

Key points for practice

• Practical point: an equivalence argument must be made in the infringement pleadings or through a prompt and reasoned request for leave, the rejoinder on the counterclaim is no substitute.

Provisions applied

Rules of Procedure

Rules 30.1(b) and 36

Case law cited

Ortovox v Mammut, Düsseldorf Local Division, 30 October 2024, Grundfos v Hefei, Düsseldorf Local Division, 26 February 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.