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1 Key takeaways
A penalty order under R. 354.4 RoP is appealable only via the leave-to-appeal mechanism
The appellant argued that the CFI's reference to R. 354.4 RoP in the impugned order created the impression that leave to appeal had already been granted, analogous to Total v. Texas Instruments (CoA_651/2024). The Court of Appeal rejected this, holding that R. 354.4 RoP clearly refers to R. 220.2 RoP.
An attorney-represented party is expected to recognize from the applicable rules and Court of Appeal case law that a request for leave to appeal is required. Ambiguity in the CFI's guidance does not excuse failure to comply with the procedural requirements.
Discretionary review under R. 220.3 RoP requires that the CFI has first denied a timely request for leave to appeal under R. 220.2 RoP
Discretionary review by the Court of Appeal is only available where the CFI has actually denied a request for leave to appeal. Where the appellant failed to file a timely request for leave within the 15-day period of R. 220.2 RoP, the precondition for discretionary review is not met and the request is inadmissible.
The Court left open what applies where the CFI fails to decide within the 15-day time limit despite a timely request for leave to appeal (citing Suinno v. Microsoft, CoA, 9 October 2024, UPC_CoA-586/2024).
Art. 73(2)(b) UPCA does not empower the Court of Appeal to grant leave to appeal itself; only the court that issued the order may do so.
The appellant's auxiliary request that the Court of Appeal itself grant leave to appeal was dismissed as inadmissible. Art. 73(2)(b) UPCA empowers "the Court" – meaning the court that issued the impugned order – to grant leave. The Court of Appeal's role is limited to discretionary review under R. 220.3 RoP, if admissibility conditions are met.
2 Division
Court of Appeal of the Unified Patent Court
3 UPC number
UPC_CoA_34/2026
4 Type of proceedings
Request for a discretionary review (RoP 220.3)
5 Parties
Appellant (Defendant before the Court of First Instance)
EOFlow Co., Ltd. (South Korea)
Respondent (Applicant before the Court of First Instance)
Insulet Corporation (USA)
6 Patent(s)
EP 4 201 327
7 Jurisdictions
UPC
8 Body of legislation / Rules
R. 220.2 RoP, R. 220.3 RoP, R. 354.4 RoP, R. 262.2 RoP, R. 262 RoP, Art. 73(2)(b) UPCA, Art. 58 UPCA
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
