Kodak v Fujifilm (CoA, 31 August 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

The UPC Court of Appeal refuses to give suspensive effect to the application for rehearing filed by Fujifilm Corporation against its decision of 2 June 2026, which had upheld Kodak’s private prior use defence and dismissed the infringement action based on EP 3 511 174. Rehearing being an extraordinary remedy, suspensive effect remains the exception and must be specifically justified. An allegation of fundamental procedural defects is not enough.

Question

On what conditions may an application for rehearing suspend the enforcement of the final decision it challenges?

Decision

An application for rehearing has no suspensive effect unless the Court of Appeal decides otherwise (Art. 81(2) UPCA and Rule 252 RoP, paragraph 4). Any request to suspend a final decision must be specifically justified (paragraph 5) and is assessed in the light of all the circumstances, including the parties’ interests (paragraph 6). Fujifilm gave no reasons specific to suspension. Merely asserting fundamental procedural defects is insufficient, since their existence is the very question to be decided on rehearing (paragraph 7). No specific prejudice was identified, nor any reason why it could not be remedied if the application succeeded (paragraph 8). The request is dismissed (paragraph 9).

Key points for practice

• A request for suspensive effect must rest on grounds distinct from those advanced in support of the rehearing itself (paragraph 7).
• The applicant must identify concrete prejudice and explain why it could not be remedied if the rehearing succeeded (paragraph 8).

Provisions applied

Agreement on a Unified Patent Court

Art. 81(2)

Rules of Procedure

Rules 245 and 252

Related decisions

• Kodak v Fujifilm, Court of Appeal, 2 June 2026, the decision challenged by the application for rehearing.

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.