Short Summary
The Court of Appeal of the Unified Patent Court dismissed Emboline Inc.'s application seeking to disregard certain evidence as late-filed or, alternatively, to be granted leave to file further written pleadings in the appeal proceedings. The disputed evidence consisted of Exhibit HRM 26 (a written witness statement of Prof. Marco De Carlo) and paragraphs 101–120 of AorticLab srl's Statement of response. The Court held that no further pleadings or evidence would be allowed at that stage and ordered the written procedure to be closed.
Detailed Summary
This order was issued by the Court of Appeal of the Unified Patent Court on 28 September 2026 in appeal proceedings UPC_CoA-40/2026, concerning an application for a late-filing objection under Rules 9.2, 36 and 336 of the Rules of Procedure. The appellant and applicant, Emboline Inc., a company based in Santa Cruz, United States, was represented by Dr. Thure Schubert and other attorneys from Vossius & Partner and KIPA AB. The respondent, AorticLab srl, based in Samone, Italy, was represented by Sabine Agé of Hoyng Rokh Monegier and attorneys from André Roland. The patent at issue was EP 2 129 425, and the appeal arose from a decision of the Local Division Munich issued on 13 January 2026 in infringement proceedings UPC_CFI_628/2024, with the underlying point at issue being the clarification of a conditional counterclaim for revocation.
On 16 September 2026, Emboline filed a generic procedural application requesting that Exhibit HRM 26 — the written witness statement of Prof. Marco De Carlo — together with paragraphs 101 to 120 of AorticLab's Statement of response in the appeal proceedings dated 17 August 2026, which related to the allegations of Prof. Marco De Carlo, be disregarded as late-filed evidence. In the alternative, Emboline sought leave to file a further written submission limited to responding to this new evidence, within a time limit of two months from service of the Court's order. The Court noted that Emboline would still have the opportunity to comment on Exhibit HRM 26 and the Statement of response at the oral hearing, including clarifying which parts should be disregarded and why.
The Court of Appeal, sitting as Panel 2 with presiding judge and judge-rapporteur Rian Kalden, legally qualified judges Patricia Rombach and Ingeborg Simonsson, and technically qualified judges Renaud Fulconis and Max Tilmann, rejected Emboline's request. The Court reasoned that no further pleadings or submission of exhibits would be allowed at that stage of the proceedings, and accordingly ordered the written procedure to be closed. The judge-rapporteur further indicated that no interim conference would be held pursuant to Rule 239.1 RoP, and announced the intention to close the written procedure on 29 September 2026.
Practitioner Note
This case demonstrates the evidentiary and procedural standards applied in patent matters before Luxembourg (LU). Understanding the court's reasoning in Emboline, Inc. vs AorticLab srl is valuable context for structuring arguments or assessing risk in similar proceedings.
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