N.V. Nutricia v Nestlé Health Science (Deutschland) (CFI, 22 September 2023)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 22 September 2023 (UPC_CFI_201/2023, APP_559862/2023), the judge-rapporteur of the Düsseldorf Local Division, in N.V. Nutricia’s infringement action on EP 2 359 858 against Nestlé Health Science (Deutschland), postponed until the Statement of defence has been lodged the referral to the President of the Court of First Instance of the defendant’s request for the allocation of a technically qualified judge. The order gives a useful marker as to when such a request can sensibly be considered.

Question

At what stage of the written procedure should a defendant’s request for the allocation of a technically qualified judge (Rule 33 RoP) be passed on to the President of the Court of First Instance?

Decision

Neither the UPCA nor the Rules set a time frame. The request should be passed on once the judge-rapporteur can make at least a rough assessment of whether an additional judge is needed, and by its nature the earliest point for that assessment is after the Statement of defence has been filed. The mere announcement of a non-infringement defence or of a counterclaim for revocation is not enough. The Division also noted that the aim of holding the final oral hearing within one year could be put at risk by the early allocation of a fourth judge, and that Rule 37 RoP addresses a different situation.

Key points for practice

• Practical point: a request for a technically qualified judge made before the Statement of defence will be held over, it is more effective to support it by reference to the defence and revocation arguments actually raised.

Provisions applied

Agreement on a Unified Patent Court

Art. 8(5)

Rules of Procedure

Preamble (point 7), Rules 33.1, 33.2, 33.3 and 37

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.