2026-06-29 - CoA - SILIMED Indústria de Implantes Ltda v. Polytech Health&Aesthetics GmbH - UPC-COA-0000066/2026
- Aktenzeichen:
- UPC-COA-0000066/2026
- Datum:
- Spruchkörper:
- Court of Appeal - Luxembourg (LU)
- Art:
- Decision
- Parteien:
- SILIMED Indústria de Implantes Ltda v. Polytech Health&Aesthetics GmbH
Kernaussage: ENGLISH:
2026-06-29 - CoA - SILIMED Indústria de Implantes Ltda
v.
Polytech Health&Aesthetics GmbH - UPC-COA-0000066/2026
ENGLISH:
An application to remove an unauthorised application to opt out pursuant to R. 5A RoP must
a) either demonstrate that the person who filed the application to opt out, at the time of filing the application, was not the person shown in each national patent register for which the European patent was validated as the person entitled to be registered as the proprietor of the European patent, but that it was the applicant of the application to remove the unauthorised application to opt out, see R. 8.5(c) RoP,
b) or, if the persons mentioned under a) are identical, demonstrate that at the time of filing the application to opt out, the person shown in each national patent register for which the patent was validated as the person entitled to be registered as the proprietor of the European patent, under the law of each Member State for which the European patent was validated, was not entitled to be registered as the proprietor of the patent, but that it was the applicant of the application to remove the unauthorised application to opt out, see R. 8.5(a) RoP.
landmark
The President of the Court of Appeal, reviewing a Registrar's decision under R. 5A RoP, articulated for the first time the standard an applicant must meet to remove an allegedly unauthorised opt-out. The applicant must either rebut the R. 8.5(c) RoP presumption that the person shown in each national patent register is the entitled proprietor, or — where that person is identical — prove under R. 8.5(a) RoP that the filer was not entitled to be registered as proprietor under the national law of each validating Member State, in both cases as of the date the opt-out was filed. Proprietorship for opt-out authorisation is assessed at the moment of filing the opt-out, not later. Because the German entitlement-transfer judgment (OLG Frankfurt, final only on 5 January 2026) had no retroactive effect, Polytech was the entitled proprietor when it filed the opt-out on 30 March 2023, so the opt-out was authorised and could not be removed. The review was therefore admissible but unfounded.