EOFlow v Insulet (CoA, 26 February 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 26 February 2026 (UPC_CoA_34/2026), the standing judge of the Court of Appeal dismissed as inadmissible EOFlow’s request for discretionary review and its auxiliary request for leave to appeal. Both targeted the Milan Central Division’s order of 4 December 2025, which set penalty payments of EUR 150,000 for non-compliance with provisional measures (EP 4 201 327) and ordered EOFlow to pay EUR 10,000 in costs. The order confirms that review under Rule 220.3 presupposes a refusal of leave by the Court of First Instance, sought within the 15-day period.

Question

Can a party that failed to seek leave to appeal from the first instance in time obtain discretionary review or, failing that, leave to appeal from the Court of Appeal itself?

Decision

Discretionary review is available only where the first instance has refused leave. EOFlow did not request leave within 15 days, and the Court left open the position where the first instance fails to rule within that period (paragraph 16). Total v Texas Instruments is not comparable: nothing prevented EOFlow, which was represented by counsel, from seeking leave (paragraph 17). Article 73(2)(b) UPCA and Rule 220.2 leave the decision on leave to the court that issued the order. The Court of Appeal deals with leave only within an admissible discretionary review (paragraph 18). There was no need to rule on the confidentiality requests at this stage (paragraph 19).

Key points for practice

• For orders falling under Rule 220.2, leave must be sought from the first instance within 15 days, an argument based on an ambiguous note on remedies in the order does not cure a missed deadline, and the Court of Appeal will not grant leave itself (paragraphs 16 to 18).

Provisions applied

Agreement on a Unified Patent Court

Arts 58 and 73(2)(b)

Rules of Procedure

Rules 220.2, 220.3, 262, 262.2, 262A and 354.4

Case law cited

Suinno v Microsoft, Court of Appeal, 9 October 2024, Total v Texas Instruments, Court of Appeal, 14 January 2025, Insulet v A. Menarini Diagnostics, Court of Appeal, 9 January 2025, EOFlow v Insulet, Court of Appeal, 4 February 2026

Related decisions

• Insulet v EOFlow, 4 December 2025, the Central Division order under challenge.
• EOFlow v Insulet, 4 February 2026, appeal against the penalty and costs orders dismissed.

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.