Short Summary
This is a procedural decision of the Local Division Brussels concerning an Application for Review filed by the defendants against a prior case management order. The defendants, OrthoApnea S.L. and VIVISOL B BV, sought review of Order ORD_37783/2024 of 8 July 2024, which had rejected their objection against the claimant's equivalence arguments while granting an extension for filing a Statement of Rejoinder until 1 August 2024. The underlying dispute relates to European Patent EP 2 331 036 and concerns the permissibility of the claimant supplementing factual context, adding equivalence-based infringement arguments, and adjusting the prayer for relief in their Reply to the Statement of Defence.
Detailed Summary
This proceeding (UPC_CFI_376/2023) is before the Local Division Brussels of the Unified Patent Court. The claimant is a natural person residing in Belgium (whose name is redacted in the public record), represented by counsel from Belgium and the Netherlands. The defendants are (1) OrthoApnea S.L., a Spanish company with its registered office in Malaga, Spain, and (2) VIVISOL B BV, a Belgian company with its registered office in Lessines, Belgium (enterprise number 0454.915.053), represented by Dutch counsel. The patent at issue is European Patent EP 2 331 036. The language of the proceedings is Dutch. The panel consists of Judge-Rapporteur Samuel Granata and legally qualified judges Margot Kokke and András Kupecz.
On 8 July 2024, the Judge-Rapporteur issued Order ORD_37783/2024, which rejected the defendants' Generic Procedural Application (Objection against Equivalence) filed on 24 June 2024, but granted an additional term for the defendants to file their Statement of Rejoinder (R. 29(c) RoP), with a deadline of 1 August 2024. On 16 July 2024, the defendants filed an Application for Review of this case management order pursuant to R. 333.1 RoP and R. 334 RoP. By an interim decision of 17 July 2024, the claimant was requested to take a position by 18 July 2024, which it did in a timely manner.
The substantive issue underlying the review concerns the permissibility of the claimant, in its Reply to the Statement of Defence (R. 29(b) RoP), to: (i) supplement the factual framework, (ii) supplement the infringement argumentation with an equivalence-based argument, and (iii) adjust the prayer for relief (petitum). These questions arise in light of R. 13.1.(l) through (o) RoP (Content of Statement of Claim), R. 24(b) through (g) RoP (Contents of Statement of Defence), R. 29(b) and (c) RoP (Reply and Rejoinder), and R. 263 RoP (Leave to Change claim or amend case). In their Procedural Request of 24 June 2024, the defendants primarily sought to refuse the equivalence-based extension, the newly introduced facts, and the newly adjusted prayer for relief in the Reply, with subsidiary procedural requests also being made.
& Analysis
The decision was issued as a Definitive Decision under Rule 9 RoP (ORD_42533/2024), treated as a Definitive Decision under Rule 333.4 RoP in APP_41533/2024, following the issuance of the interim decision ORD_42232/2024. The court considered the defendants' Application for Review and the claimant's timely response in determining the procedural posture of the case.
Final Order & Ruling
The present Definitive Decision (ORD_42503/2024) was rendered on 19 July 2024 in connection with the Application for Review of 16 July 2024, addressing the procedural dispute over the scope of permissible amendments and additions in the claimant's Reply submissions concerning European Patent EP 2 331 036.
Practitioner Note
This case demonstrates the evidentiary and procedural standards applied in patent matters before Brussels (BE) Local Division. Understanding the court's reasoning in OrthoApnea S.L. vs Respondent is valuable context for structuring arguments or assessing risk in similar proceedings.
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