2024-11-21 - CoA - Orthoapnea et al. v. Anonymisiert (vertr. Christophe RONSE) - UPC_CoA_456/2024

1. Not every new argument constitutes an “amendment of a case” requiring a party to apply for leave under R. 263 RoP. An amendment of a case occurs when the nature or scope of the dispute changes. For example, in an infringement case, this occurs if the plaintiff invokes a different patent or objects to a different product. 2. If a new argument is not an amendment of the case for which judicial leave is required under R. 263 RoP, there still are restrictions on raising new arguments. R. 13 RoP requires that the Statement of claim contains the reasons why the facts relied on constitute an infringement of the patent claims, including arguments of law. This provision must be interpreted in light of the final sentence of Recital 7 of the Preamble to the Rules of Procedure, which requires parties to set out their case as early as possible in the proceedings. 3. However, R. 13 RoP does not preclude a claimant from raising any new argument after the submission of the Statement of Claim. Whether a new argument is admissible depends on the circumstances of the case, including the reasons why the claimant had not already raised the argument in the Statement of Claim and the procedural opportunities for the defendant to respond to the new argument. In making this assessment, the Court of First Instance has a certain discretion. The Court of Appeal's review is thus limited. 4. If a new argument does not amend the case within the meaning of R. 263 RoP, the claimant need not apply to the Court for leave. If the opposing party is of the opinion that a new argument is inadmissible, it can object to it. The Court may raise the issue of admissibility of a new argument ex officio. The Court will decide after hearing the parties. The Court may defer that decision until the interim procedure or the final decision. If the new argument is inadmissible and the opposing party has submitted a defence on the substance of the new argument, the Court may take this into account when awarding costs.

The Court of Appeal dismissed an appeal against a review order on the alleged violation of rule 13 because new arguments were introduced without a Rule 263 Application. The CoA explained under which circumstances new arguments may be brought without Rule 263 applying and Rule 13 to be violated.