No. 139 - July 14, 2026
Align Technology v Angelalign Technology – Court of Appeal, 8 July 2026, UPC_CoA_36/2026
The Court of Appeal has further clarified the consequences of late-filed non-infringement arguments in UPC proceedings.
The decision draws a distinction between disputes concerning the technical functioning of an accused product and the legal question whether an established functionality falls within the scope of a patent claim.
In provisional measures proceedings, the Court may in individual cases take a more lenient approach towards late-filed submissions. However, where non-infringement arguments disputing the claimant's factual allegations are filed late without justification, those arguments may be disregarded and the claimant's factual case treated as uncontested.
This does not, however, automatically establish infringement. Even on the basis of uncontested facts, the Court must still assess whether those facts justify the legal conclusion that the patent is infringed.
Align Technology sought provisional measures against several companies of the Angelalign group based on a patent relating to automated modifications of orthodontic treatment plans.
The application targeted Angelalign's iOrtho software and, in particular, its "Live Now" feature. The Düsseldorf Local Division granted a preliminary injunction.
In their Objection, the defendants concentrated on validity and did not raise substantive non-infringement arguments. They first submitted detailed non-infringement arguments in their Rejoinder.
The Düsseldorf Local Division disregarded those submissions as late filed. Since infringement had not been timely contested, the Local Division assumed infringement for the purposes of the provisional measures proceedings.
On appeal, the Court of Appeal took a more differentiated approach.
The Court of Appeal first addressed the general standard applicable to late-filed submissions.
Under Rule 222.2 RoP, the Court of Appeal has discretion to decide whether requests, facts and evidence not submitted at first instance should be taken into account on appeal. This applies even where a submission was correctly disregarded by the Court of First Instance.
The Court noted that the summary nature of provisional measures proceedings and the short applicable time limits may, in individual cases, justify a more lenient approach towards late-filed submissions than in proceedings on the merits.
However, the Court immediately added an important differentiation. There may be less reason for leniency where defendants, despite being aware of the relevant patent rights, launch their products at risk and should therefore have been properly prepared for preliminary injunction proceedings.
In the present case, the defendants had provided no justification for filing their non-infringement arguments late. The arguments concerned the functioning of their own products and could have been prepared for the Objection. The defendants had even benefited from an extended period of more than two months to file their Objection.
Nevertheless, the Court admitted the late-filed non-infringement arguments concerning one of the three infringement scenarios relied upon by Align.
The decisive point was that, for this first scenario, the defendants did not dispute the technical functioning of the iOrtho software as described by Align. They essentially confirmed the alleged functionality.
The real dispute concerned whether the software, with this undisputed functionality, fell within the claim as interpreted by the Court.
The Court recalled that, as a general rule, an uncontested submission cannot be rejected as late filed. It further considered that the relevant non-infringement arguments had already been on file since the Rejoinder and that Align had sufficient opportunity to address them on appeal.
The Court therefore admitted the non-infringement arguments concerning this scenario.
The Court reached a different conclusion for the other two infringement scenarios.
Here, the defendants' late-filed non-infringement arguments disputed Align's technical characterisation of the accused software. The arguments therefore concerned the factual basis of the infringement case rather than merely the legal assessment of an undisputed functionality.
Since the arguments had been filed late without justification, the Court disregarded them.
As a consequence, Align's factual submissions concerning these two scenarios had to be treated as uncontested.
The particularly interesting aspect of the decision is what followed.
Although the claimant's factual allegations concerning the second and third scenarios were uncontested, the Court did not simply assume infringement.
The Court expressly held that, even where facts are uncontested, it must still determine whether the facts advanced justify the legal consequence for which they were submitted.
Applying its own claim construction, the Court therefore examined whether the uncontested functionality of the iOrtho software implemented the claimed sequence of a distinct threshold determination followed by the generation of a revised treatment plan.
It concluded that infringement had not been shown for the second and third scenarios. The uncontested facts did not establish a distinct determination step preceding the generation step. Nor was it sufficiently clear that the error messages relied upon by Align reflected the threshold-based mechanism required by the claim.
Thus, the defendants lost the opportunity to dispute the claimant's factual account of the software. Yet the claimant still had to establish that those uncontested facts fell within the properly construed patent claim. On the facts presented, it failed to do so for two of the three infringement scenarios.
The summary nature and short time limits of provisional measures proceedings may justify a more lenient approach towards late-filed submissions than in proceedings on the merits.
Defendants who knowingly launch at risk should not expect particular leniency. Arguments concerning the functioning of their own products should generally be prepared and submitted with the Objection.
The Court distinguishes between late submissions disputing the technical facts and arguments concerning whether an undisputed functionality falls within the scope of the claim.
If late non-infringement arguments disputing the technical facts are disregarded, the claimant's factual allegations may be treated as uncontested.
Uncontested facts do not automatically establish infringement. The Court must still assess whether the established facts justify the legal conclusion that the accused product falls within the properly construed patent claim.
