Oerlikon Textile v Himson Engineering (CFI, 17 September 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By a procedural order of 17 September 2024 (UPC_CFI_240/2023, ACT_549550/2023, ORD_40903/2024), the Milan Local Division (P. Perrotti, presiding, A. Zana, judge-rapporteur, C. Gillet, M. Abello) refused to admit the eighth auxiliary request to amend EP 2 145 848 B1 filed under Rule 30.2 by Oerlikon Textile GmbH & CO KG in its infringement action against Himson Engineering Private Limited, which has counterclaimed for revocation. The order applies the conditions for a late amendment strictly.

Question

On what conditions may an application to amend filed after the Rule 30.1 period be admitted under Rule 30.2?

Decision

A subsequent request must be prompted by a new attack, respond to it, have been impossible to file earlier and be capable of affecting the outcome (section 1.3), Rule 30.2 is exceptional and construed strictly. Oerlikon, which relied on prior art US ‘795 filed on 19 April 2024, later based its justification on DE ‘042, a late change of position (section 3). The request is an intermediate generalisation of paragraph [0043], contrary to Art. 123(2) EPC, and makes the number of feeders unclear under Art. 84 (section 4). It does not effectively answer US ‘795 and could have been filed with the seven auxiliary requests already lodged (section 5). Given their number, the division exercised its discretion to refuse (section 6).

Key points for practice

• Practical point: a late auxiliary request must be tied, from the outset, to the new attack that justifies it, shifting the justification later weakens it.

Provisions applied

Rules of Procedure

Rules 30, 50 and 263.2

European Patent Convention

Art. 84, Art. 123(2) and (3)

Case law cited

Carrier Corporation v BITZER Electronics A/S, Paris Central Division, UPC_CFI_263/2023, Edwards Lifesciences Corporation v Meril Italy Srl, UPC_CFI_255/2023, Panasonic Holdings Corporation v Xiaomi Technology Germany GmbH, UPC_CFI_219/2023

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.