OrthoApnea v *** (CoA, 26 July 2024)
| Date | 26 July 2024 |
|---|---|
| Court | CoA |
| Division | Luxembourg (LU) |
| Type of action | Application Rop 223 |
| Registry reference | App_42818/2024 · ORD_43804/2024 |
| Parties | OrthoApnea S.L., Vivisol B BV v. *** |
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.
Dhenne Avocats · 10 October 2026
Our analysis
Summary
By order of 26 July 2024 (App_42818/2024), the standing judge of the Court of Appeal refused the application for suspensive effect (Rule 223 RoP) lodged by OrthoApnea and Vivisol B against the Brussels Local Division’s order of 19 July 2024, which had refused to suspend the time limit for their rejoinder, kept at 1 August 2024, in the infringement action on EP 2 331 036 brought by a claimant whose name is redacted (UPC_CFI_376/2023). The remaining requests were referred to the competent panel.
Question
May a defendant obtain, through suspensive effect of its appeal, a suspension of the time limit for its rejoinder until the admissibility of an infringement-by-equivalence argument raised in the reply has been decided?
Decision
The application is admissible: without suspensive effect, the appeal against the refusal to extend the time limit could become devoid of purpose (paragraphs 6 to 9). Suspensive effect under Art. 74(1) UPCA and Rule 223 RoP is granted only in exceptional circumstances (paragraph 7). Urgency is established, since the time limit expires five days later (paragraph 10). The application is nonetheless unfounded: parties must file their pleadings without knowing how they will be assessed, and the refusal to exclude the equivalence argument is not manifestly wrong in view of how the proceedings have developed (paragraphs 11 to 15), the time limit had already been extended by two weeks (paragraph 16). The requests for an extension, for exclusion of the argument and on costs go to the substance of the appeal (paragraphs 17 and 18).
Key points for practice
- Practical point: uncertainty over the admissibility of the other side’s new argument does not justify suspensive effect, the defendant must file within the time limit, in the alternative if need be.
Provisions applied
- Agreement on a Unified Patent Court
- Art. 74(1)
- Rules of Procedure
- Rules 223 and 263
- Case law cited
- ICPillar, Court of Appeal, 19 June 2024 (UPC_CoA_301/2024)
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.
Going further
Lexicon: UPC Court of Appeal.
Dhenne Avocats blog: UPC Appeals: What the Numbers Show.
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
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
UPC_CFI_376/2023Parties
- claimantOrthoApnea S.L10 decisions in the corpusFollow this party
- claimantVivisol B BV7 decisions in the corpusFollow this party
Decisions in the same proceedings and documented appeals
What the record states
- Nature of the act
- Application Rop 223
- Outcome (Dhenne Avocats summary)
- La demande d'effet suspensif est rejetée, le délai de duplique restant fixé au 1er août 2024, les autres demandes sont renvoyées à la chambre compétente.
- Appeal
- Decision of the Court of Appeal (first instance cited: UPC_CFI_376/2023).
- Instance
- Court of Appeal decision.
Patents mentioned
EP 2 331 036mentioned in: Dhenne Avocats analysis Follow this patent
Related decisions cited in the analyses
- ICPillar v ARM (CoA, 19 June 2024) cited in this record
Patents and standards
| Publication | Role in the dispute | Family | Standard and declaration | Pool | Sources |
|---|---|---|---|---|---|
EP 2 331 036Device 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 (CFI, 19 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 |
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