Court of Appeal rejects Alexion’s rehearing request

Court of Appeal rejects Alexion’s rehearing request – and stresses representatives must be familiar with EPO case law

UPC_CoA_405/2024 – Decision of 19 June 2025

The UPC’s Court of Appeal has rejected a rehearing application by Alexion Pharmaceuticals under Art. 81(1)(b) UPCA. Alexion had sought to reopen proceedings after its earlier appeal for provisional measures against Amgen was dismissed. According to the panel, no “fundamental procedural defect” within the meaning of Art. 81(1)(b) UPCA and Rule 247(c) RoP had occurred. The Court took the opportunity to clarify what amounts to such a defect – and what clearly does not.

Extraordinary remedy with narrow scope

Art. 81(1) UPCA allows a final decision of the Court of Appeal to be reopened only in exceptional cases, including where the judgment is based on a procedural defect so serious that it undermines the legitimacy of the judicial process. The Court recalled that this is not a regular appeal but a narrow remedy “only if the defect is intolerable for the legal system” and if the decision would not have been the same otherwise.

Alexion had argued that the Court’s prior order introduced a new claim construction approach and relied on incorrect facts without offering a proper opportunity to respond. The Court disagreed. Asserting that a party merely disagrees with the legal reasoning or evidentiary assessment does not meet the threshold. The right to be heard does not require the Court to pre-notify parties of its legal reasoning or preliminary views unless the outcome would be entirely unforeseeable.

UPC representatives must know EPO BoA case law

Of wider importance is the Court’s confirmation that representatives appearing before the UPC must be aware of relevant case law of the EPO’s Boards of Appeal and Enlarged Board. These apply the same substantive EPC provisions as the UPC and remain persuasive sources of interpretation. The Court stated:

“Case law that parties are expected to have knowledge of includes case law of the Technical Boards of Appeal (TBAs) and the Enlarged Board of Appeal (EBA) of the European Patent Office (EPO) relevant for the issues at hand and the arguments advanced.”

To my fellow EPO representatives: Our experience has never been more relevant! 🙂

Takeaways

• Rehearing under Art. 81(1)(b) UPCA is not a backdoor appeal – it requires a defect so fundamental that it renders the prior decision legally intolerable.
• A mere disagreement with the Court’s evaluation of facts or law is not enough.
• The Court may depart from party submissions and EPO reasoning, but parties must know EPO BoA and EBA case law – it forms part of the applicable legal landscape.

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