Court of Appeal refuses additional written round

Court of Appeal refuses additional written round – auxiliary requests from first instance already part of the appeal

Sibio Technology v Abbott Diabetes Care – Court of Appeal, 27 February 2026 (UPC_CoA_884/2025)

Introduction

In an recent order, the Court of Appeal rejected Sibio’s request for an additional exchange of written pleadings in appeal proceedings concerning EP 3 831 283. Sibio had argued that a further written round was necessary because Abbott relied in its response on six auxiliary requests that had not been addressed by the Court of First Instance.

The judge-rapporteur dismissed the request and closed the written phase.

Auxiliary requests from first instance remain part of the appeal

Abbott had filed the auxiliary requests already during the proceedings before the Central Division, where they had been admitted into the case. The first-instance decision ultimately upheld the patent as granted and therefore did not need to address those requests.

On appeal, Sibio argued that it should be allowed further written submissions because Abbott had relied again on these auxiliary requests in its response.

The Court of Appeal rejected this argument. Referring to Rules 222.1 and 222.2 RoP, it emphasised that the appeal proceedings are based on the requests, facts and evidence submitted at first instance. Since the auxiliary requests had already been filed and admitted there, they automatically form part of the appeal proceedings unless the respondent withdraws them.

The Court also clarified that there is no requirement to re-file auxiliary requests on appeal.

No cross-appeal and no right to an additional written round

The Court further rejected Sibio’s suggestion that Abbott’s reliance on the auxiliary requests amounted to a conditional cross-appeal. Abbott did not challenge the outcome of the first-instance decision and merely maintained the requests it had already made in the earlier proceedings.

For the same reason, there was no basis for allowing additional written pleadings under Rule 36 RoP. The Court stressed that the mere fact that additional pleadings would not affect the procedural timetable is not a sufficient justification.

Nor did the refusal violate the right to be heard. Sibio had already had the opportunity to address the auxiliary requests during the first-instance proceedings and in its statement of grounds of appeal, and it could respond further during the oral hearing.

Takeaways

• Auxiliary requests filed and admitted at first instance automatically form part of the appeal proceedings.
• A respondent relying on such requests does not bring a cross-appeal if it seeks only to maintain the outcome of the first-instance decision.
• Rule 36 RoP does not entitle parties to an additional written round merely because the opposing party relies on auxiliary requests already present in the case.

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