Appeals against first-instance decisions are lodged with the Court of Appeal of the UPC, which sits in Luxembourg in panels of five judges (A9 UPCA; see “Organisation of the UPC”).

Decisions open to appeal

An appeal may be lodged by a party that has been unsuccessful, in whole or in part (A73 UPCA and R220 RoP UPC):

  • against final decisions of the Court of First Instance, and decisions that terminate the proceedings as regards one of the parties;
  • against orders concerning language (Article 49(5)), production of evidence (Article 59), preservation of evidence and inspection (Article 60), freezing of assets (Article 61), provisional measures (Article 62) and communication of information (Article 67).

Other orders may be challenged only together with the appeal against the decision on the merits, or with the leave of the Court of First Instance, requested within 15 days (R220.2 RoP UPC). If leave is refused, a request for discretionary review may be made to the Court of Appeal within the following 15 days; it is considered by a standing judge, who may reject it without giving reasons (R220.3 and R220.4 RoP UPC).

Discretionary review is granted only if the order is manifestly wrong or raises a fundamental point of law, such that its review is necessary for the consistent application of the Rules (UPC, Court of Appeal, 10 July 2026, Adobe v. Keeex, UPC_CoA_95/2026, point 25). A narrow door, then.

Decisions on costs follow their own regime (leave requested within 15 days: see “Legal costs”).

Time limits

The Statement of appeal is lodged (A73 UPCA and R224 RoP UPC):

  • within two months of service of a decision, the Statement of grounds of appeal having to follow within four months of that service;
  • within 15 days of service of an order open to immediate appeal (or of the decision granting leave), a time limit that also applies to the grounds.

The time limit for the Statement of appeal cannot be extended (R9.4 RoP UPC). The appeal fee is set out in “Court fees and value of the action”.

The respondent lodges its Statement of response, and may lodge a cross-appeal (R235 to R238 RoP UPC).

(No) suspensive effect

In principle, an appeal has no suspensive effect, unless the Court of Appeal decides otherwise on a reasoned application (A74(1) UPCA and R223 RoP UPC): the first-instance decision applies notwithstanding the appeal.

A notable exception: an appeal against a decision on an action or counterclaim for revocation (or on an action against the EPO) always has suspensive effect (A74(2) UPCA). The logic is clear: a patent is not struck off the register until its fate is final.

Apart from that case, suspensive effect remains the exception: the appellant must show that its interest in maintaining the status quo exceptionally outweighs that of the respondent, for example because the decision is manifestly wrong or the appeal would become devoid of purpose without suspensive effect. “Serious” consequences that are merely alleged, or that are hard to reverse (registered letters to customers, a notice on its website, an interim award of damages), are not enough (UPC, Court of Appeal, 16 Jan. 2026, Amycel, UPC_CoA_935/2025, points 11 to 14; to the same effect, UPC, Court of Appeal, 2 Dec. 2025, Windhager v. Bellissa, UPC_CoA_894/2025, points 9 and 10). The application must be self-contained: the Court must be able to decide on the basis of the application alone (same decision, point 8).

An appeal against an order (language, evidence, provisional measures…) does not prevent the continuation of the main proceedings, but the Court of First Instance may not give a decision on the merits before the decision of the Court of Appeal (A74(3) UPCA).

A framed appeal

An appeal may be based on points of law and matters of fact (A73(3) UPCA). But requests, facts and evidence not submitted at first instance may be disregarded; the Court takes into account in particular whether they could not reasonably have been submitted earlier, their relevance and the position of the other party (A73(4) UPCA and R222.2 RoP UPC). An appeal is not a second chance to retry the case.

The Court is not bound by a finding of inadmissibility at first instance: it assesses for itself, in the light of all the circumstances, whether a submission rightly disregarded should be taken into account; the grounds of appeal must be sufficiently clear, and the Court does not have to search for them in the exhibits (UPC, Court of Appeal, 25 Sept. 2024, Mammut v. Ortovox, UPC_CoA_182/2024, headnotes 1 to 3). In provisional measures proceedings, some flexibility is allowed for late submissions, but not for the benefit of a party that launched its product at its own risk knowing of the patent (UPC, Court of Appeal, 8 July 2026, Angelalign v. Align, UPC_CoA_36/2026, point 159).

The decision on appeal

If the appeal is well founded, the Court of Appeal revokes the decision and gives a final decision itself; it refers the case back to the Court of First Instance only in exceptional cases, the latter then being bound by its decision on points of law (A75 UPCA and R242 and R243 RoP UPC). The fact that the Court of First Instance did not decide a necessary issue is not normally an exceptional case (R242.2(b) RoP UPC).

A case of exceptional importance, in particular for the consistency of the case law, may be referred to the full Court of Appeal (R238A RoP UPC).

Rehearing

Exceptionally, a final decision may be the subject of a rehearing before the Court of Appeal (A81(1) UPCA and R245 RoP UPC):

  • on discovery of a decisive fact, unknown to the party when the decision was given, provided that it arises from an act held, by a final court decision, to constitute a criminal offence;
  • in the event of a fundamental procedural defect, for example where a judge sat in breach of the rules on impartiality, a request was not decided, or the right to a fair trial was infringed (R247 RoP UPC).

The application is lodged within two months of the discovery of the fact or defect (or of service of the decision) and no later than ten years after the decision; it has no suspensive effect unless the Court decides otherwise (A81(2) UPCA and R245.2 RoP UPC). The fee is €14,600 (table of court fees, section IV), and one fee is due per case (UPC, Court of Appeal, 25 March 2026, Sanofi and Regeneron v. Amgen, UPC_CoA_528/2024 and UPC_CoA_529/2024, points 15 to 18).

Third parties using in good faith a patent that is the subject of a decision under rehearing should be allowed to continue such use (A81(4) UPCA).