The appeal against first-instance decisions is filed before the Court of Appeal of the UPC, which sits in Luxembourg in a composition of five judges (Article 9 of the Agreement on a Unified Patent Court).
Decisions subject to appeal
An appeal is available (Article 73 of the Agreement on a Unified Patent Court and Rule 220 of the Rules of Procedure) against:
- final first-instance decisions;
- decisions that terminate the proceedings for one of the parties;
- certain orders, such as those relating to the production of evidence (Article 59 of the Agreement on a Unified Patent Court), the preservation of evidence and inspections of premises (Article 60 of the Agreement on a Unified Patent Court), freezing of assets (Article 61 of the Agreement on a Unified Patent Court), provisional measures (Article 62 of the Agreement on a Unified Patent Court), or the disclosure of information (Article 67 of the Agreement on a Unified Patent Court).
Time limit
The appeal must be filed within a time limit of two months for decisions, and fifteen days for orders (Article 73 of the Agreement on a Unified Patent Court and Rule 220 of the Rules of Procedure).
(Non-)suspensive effect
In principle, the appeal has no suspensive effect (Article 74 of the Agreement on a Unified Patent Court): the first-instance decision applies despite the appeal. Notable exception: the appeal of a decision ruling on the validity of the patent (action or counterclaim for revocation) is suspensive. The rationale is clear: a patent is not removed from the register until its fate is definitively settled.
A structured appeal
The appeal is generally limited to the facts, claims, arguments, and evidence presented at first instance (Rule 222 of the Rules of Procedure). New elements that could not reasonably have been produced earlier may, however, be admitted: the appeal is not a second chance to retry the case.
Devolutive effect and remittal
The appeal decision replaces the first-instance decision within the limits of what was discussed (Rule 242 of the Rules of Procedure). The appeal is generally devolutive—the Court of Appeal re-examines the case—but it may, if necessary, remit the case to the first instance. A case of particular importance may also be handled in an enlarged panel (Rule 228 of the Rules of Procedure).
Rehearing
Exceptionally, a final decision may be subject to rehearing (Article 81 of the Agreement on a Unified Patent Court and Rule 245 of the Rules of Procedure), in particular:
- in the event of the discovery of a decisive fact arising from a criminal act;
- in the event of a fundamental procedural defect.