Short Summary
Angelalign sought discretionary review (R. 220.3 RoP) of a procedural order issued by the Local Division Düsseldorf in provisional measures proceedings concerning EP 4 346 690, which had disregarded certain non-infringement arguments and exhibits from Angelalign's Rejoinder. The Court of Appeal, sitting as a standing judge, dismissed the request, finding that Angelalign had failed to substantiate why the impugned order was manifestly erroneous and that allowing the request would disrupt the scheduled first-instance oral hearing.
Detailed Summary
This order concerns a request for discretionary review (R. 220.3 RoP) filed by Angelalign Technology Inc. and five related entities (collectively 'Angelalign') against a procedural order issued by the Local Division Düsseldorf on 16 December 2025 in provisional measures proceedings (UPC_CFI_723/2025) brought by Align Technology, Inc. The patent at issue is EP 4 346 690.
The impugned procedural order decided that the non-infringement arguments submitted in paragraphs 13-24 of Angelalign's Rejoinder and Exhibit AR 7 should be disregarded, and that Angelalign's request to allow further pleadings was dismissed. Angelalign first sought leave to appeal on 23 December 2025, which was refused by the Local Division Düsseldorf on 29 December 2025. Angelalign then uploaded its request for discretionary review on 5 January 2026, which was served on Align on 6 January 2026 after correction of deficiencies and payment of the fee.
Angelalign requested that the Court of Appeal review and set aside the procedural order, dismiss Align's underlying request for procedural order, or alternatively allow the parties to exchange further written submissions strictly limited to the question of infringement.
The Court of Appeal, acting through standing judge Rian Kalden, dismissed the request for several reasons. First, under R. 220.4 RoP, the other party must be heard before a request for discretionary review can be allowed. Given the time Angelalign had taken (one week to request leave to appeal and four working days to lodge the discretionary review request), principles of proportionality, fairness, and equity required that Align be given at least four days to respond, meaning comments would be due by 10 January 2026 (a Saturday), effectively Monday 12 January 2026. Considering Align's right to an oral hearing and the time needed for the Court of Appeal to prepare, deliberate, and issue a decision, a decision could not reasonably be issued before the first-instance oral hearing scheduled for 14 January 2026.
Second, allowing the request would disrupt the schedule of the first-instance proceedings, which would only be justified if the impugned order were manifestly erroneous. The Court noted that the exclusion of arguments and evidence by the Court of First Instance was not an error per se, as the front-loaded nature of UPC proceedings—including the possibility to disregard late-filed arguments and evidence—also applies to provisional measures proceedings, albeit with a potentially more lenient approach given the short time periods.
Third, Angelalign had failed to adequately substantiate why the impugned order was manifestly erroneous. The facts, evidence, and arguments relied upon must be brought forward in the request in a manner that enables the respondent to prepare its response and the Court of Appeal to decide without requiring further information. Angelalign had only generally stated that the Rejoinder included non-infringement arguments comprising three pages and a two-page exhibit, without referencing specific paragraphs in the first-instance pleadings or explaining why and to what extent the impugned decision was manifestly erroneous.
For these reasons, the Court of Appeal dismissed the request for discretionary review.
Practitioner Note
This case demonstrates the evidentiary and procedural standards applied in patent matters before Luxembourg (LU). Understanding the court's reasoning in Angelalign Technology Inc., Angelalign France Technology SASU, Europe Angelalign Technology B.V., Angelalign Technology (Germany) GmbH, Italy Angelalign Technology S.R.L., Shanghai EA Medical Instruments Co., Ltd. vs Align Technology, Inc. is valuable context for structuring arguments or assessing risk in similar proceedings.
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