OrthoApnea (CFI, 19 July 2024)

Date	19 July 2024
Court	CFI
Division	Brussels (BE) Local Division
Type of action	Generic Order
Registry reference	ORD_42503/2024
Parties	OrthoApnea S.L.

Official decision (PDF) · UPC registry entry

Dhenne Avocats represents claimants and defendants in European patent disputes before the Unified Patent Court, including the Paris divisions.

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Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 19 July 2024 (UPC_CFI_376/2023, ACT_581538/2023, App_41533/2024), the Brussels Local Division (S. Granata, judge-rapporteur and presiding, M. Kokke, A. Kupecz), on an application under Rule 333 RoP by OrthoApnea and VIVISOL B, defendants in an infringement action on EP 2 331 036 brought by a natural person, upheld the judge-rapporteur’s order of 8 July 2024 (ORD_37783/2024). The infringement-by-equivalence argument raised in the Reply is admitted without leave, and the time limit for the Rejoinder remains 1 August 2024. Leave to appeal is granted.

Question

Must a claimant raising infringement by equivalence for the first time in its Reply obtain leave to amend its claim under Rule 263.1 RoP, and can the defendants obtain a suspension or extension of the time limit for the Rejoinder?

Decision

No on both counts. The Rules of Procedure do not provide for suspension of time limits in the written procedure. Suspension is conceivable only if proportionate and where there is serious prejudice, which reliance on the ICPillar v ARM order does not establish (paragraph 11). The equivalence argument, subsidiary and made in response to the defence, is not a new ground requiring leave under Rule 263.1 RoP, and the defendants show no concrete prejudice since they can answer it in the Rejoinder (paragraphs 12 and 13). The 1 August 2024 time limit is sufficient (paragraph 14). Leave to appeal is granted and costs are reserved (paragraphs 15 and 16).

Key points for practice

Practical point: a subsidiary equivalence argument may be developed in the Reply without an application to amend, the defence must answer it within the Rejoinder time limit rather than count on a suspension.

Provisions applied

Rules of Procedure: Rules 9.3(a), 29, 220.2, 224.1(b), 263, 333 and 334
Case law cited: ICPillar v ARM, Court of Appeal, 19 June 2024, UPC_CoA_301/2024, Court of Appeal, 21 March 2024, UPC_CoA_486/2023

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.

Going further

Lexicon: Written procedure (UPC), Court fees and costs (UPC).

Source and translations

Official source: Unified Patent Court registry link recorded in the record
Original language: not recorded
Translation available: no translation recorded the firm’s French record is a summary, not a translation
Date checked: not recorded

Only the official text is authoritative. A machine translation is never presented as official, republishing a third-party document requires a verified basis in rights, and a link to the source is preferred.

Follow this case

Proceedings, related decisions, appeals, parties and patents as recorded in the registry and in the Dhenne Avocats corpus. Each link states its source.

Proceedings

No case number recorded in this record.

Parties

claimantOrthoApnea S.L10 decisions in the corpus Follow this party

Exact name as it appears in the record, group affiliation only where sourced and dated.

Decisions in the same proceedings and documented appeals

No other decision in the corpus bears the same case number, and no appeal is documented in the corpus to date.

What the record states

Nature of the act: Generic Order
Outcome (Dhenne Avocats summary): La formation confirme l'ordonnance du juge rapporteur : le moyen d'équivalence invoqué dans la réplique ne requiert pas d'autorisation au titre de la règle 263.1, et le délai de duplique n'est ni suspendu ni prorogé, l'appel est autorisé.
Appeal: No appeal documented in the corpus, this does not mean that no appeal was lodged.
Instance: First-instance decision, whether it has become final is not recorded.

Patents mentioned

EP 2 331 036 mentioned in: Dhenne Avocats analysis Follow this patent

Related decisions cited in the analyses

ICPillar v ARM (CoA, 19 June 2024) cited in this record
Genevant Sciences v Moderna (CFI, 18 August 2025) cites this decision

Scope: Dhenne Avocats corpus. Registry-based links are marked “official number”; links derived from the analyses are marked as such. An erroneous link can be withdrawn without deleting any record.

Patents and standards

Publication	Role in the dispute	Family	Standard and declaration	Pool	Sources
`EP 2 331 036` Device for treating night time breathing problems recorded proprietor: Personne physique (déposant individuel)	Mentioned in the analysis (role not qualified) Also mentioned in 8 other decision(s): OrthoApnea v * (CFI, 25 July 2025) · Appellant* v ORTHOAPNEA (CoA, 3 July 2025) · OrthoApnea v * (CFI, 2 May 2025) · OrthoApnea v * (CoA, 21 November 2024) · * v OrthoApnea (CFI, 17 September 2024) · OrthoApnea v * (CoA, 26 July 2024) · OrthoApnea (CFI, 8 July 2024) · *** v OrthoApnea (CFI, 21 September 2023)	not recorded	not recorded	not recorded	Espacenet · European Patent Register existence and title of the publication checked on 30 October 2026 (Google Patents, Espacenet and Register links are not checked automatically) mentioned in: Dhenne Avocats analysis

The statuses “asserted in litigation”, “declared essential”, “listed by a pool” and “essentiality examined by a court” are distinct and may coexist. Validity, infringement and technical essentiality are different questions. Scope: patents cited in the decisions of the Dhenne Avocats corpus, with no essentiality score or prediction.

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