2026-09-21 - CoA - SIDEL PARTICIPATIONS v. OMNIA TECHNOLOGIES et al. - UPC-COA-0000090/2026

The question whether an action for a declaration of non-infringement of a patent can be filed before its grant is not a question of competence of the Unified Patent Court but is a question of admissibility of the instituted claims.

The Court of Appeal dismissed Sidel's appeal against a Central Division Paris order that rejected its preliminary objection to an action for a declaration of non-infringement filed before the patents were granted. On admissibility, it held that where the Court of First Instance does not decide a timely request for leave to appeal within 15 days, leave is deemed refused and cannot be granted afterwards, so the path is a request for discretionary review under R. 220.3 RoP; whether the statement of appeal could exceptionally be read as such a request was left open. On the merits, it held that an action directed at the patents following their grant is an action for a declaration of non-infringement of patents within Art. 32(1)(b) UPCA, and that whether such an action may be filed before grant is a question of admissibility of the claims, which is not a permissible R. 19 RoP objection. Because the action was brought before the applicant filed its opt-outs, Art. 83(3) UPCA made the opt-outs ineffective.