OrthoApnea (CFI, 8 July 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By an order of 8 July 2024 (UPC_CFI_376/2023, ACT_581538/2023, ORD_37783/2024), the judge-rapporteur of the Brussels Local Division (S. Granata), in an infringement action on EP 2 331 036 conducted in Dutch against OrthoApnea S.L. and VIVISOL B BV, dismissed the defendants’ request to exclude the equivalence argument, the new facts and the amended prayer for relief put forward in the Reply. The defendants were given fourteen additional days for their Rejoinder. The order takes a purposive view of the front-loaded system.

Question

May a claimant, in its Reply (Rule 29(b) RoP), add facts, an alternative equivalence argument and amend its prayer for relief without leave under Rule 263 RoP?

Decision

Rule 13.1(l) to (o) RoP is to be read in light of its purpose, which is to prevent summary pleadings, the development of the dispute and the rights of the defence, taking account of the flexibility in Rules 36 and 104.1(e) RoP and Arts. 41(3), 42 and 52(1) UPCA (paragraph 8.1). The additions follow on from the original subject matter of the claim and respond to the Statement of Defence. The claimant acted as a normally diligent party, so leave under Rule 263.2 RoP is not relevant (paragraphs 8.2 and 8.3). The claim for provisional damages under Rule 119 RoP is admissible, since Rule 13 does not require it to be pleaded in the Statement of Claim (paragraph 8.3). The two-week extension (Rule 9.3(a) RoP) is proportionate (paragraph 9). The request for leave to appeal is moot in view of Rule 333.1 RoP (paragraph 10).

Key points for practice

• Practical point: an alternative equivalence argument raised in the Reply in response to the Statement of Defence is not late as such, the other side is instead given more time to answer it.

Provisions applied

Agreement on a Unified Patent Court

Arts. 41(3), 42 and 52(1)

Rules of Procedure

Rules 9.3, 13.1, 29, 36, 104.1, 119, 263 and 333.1

Case law cited

Netgear v Huawei, Court of Appeal, 21 March 2024

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.