UPC CoA 405/2024

The Court of Appeal set out general principles for rehearing applications under Art. 81(1)(b) UPCA, establishing that only fundamental procedural defects that would have led to a different outcome can justify rehearing, in proceedings where Alexion sought to reopen a dismissed provisional measures appeal against Amgen concerning EP 3 167 888.

The Court of Appeal dismissed Alexion's appeal against the first-instance refusal of provisional measures, upholding the finding that the patent claim could not be corrected by interpretation to remove alleged errors, and confirming that claim 2 of EP 3 167 888 was more likely than not insufficiently disclosed (Article 83 EPC). The provisional measures application was therefore denied.

The Court of Appeal ruled that service of written pleadings must be effected through the Court's electronic CMS and that prior communication via Germany's beA (besonderes elektronisches Anwaltspostfach) does not constitute effective service under R.278.1 RoP.

The Court of Appeal rejected Alexion Pharmaceuticals' request to expedite the appeal against the Hamburg Local Division's refusal to grant provisional measures against Amgen, holding that the circumstances were not sufficiently urgent to justify shortening the time period for the respondents to lodge their statement of response.