Unified Patent Court
A single patent court for Member States of the European Union
Yes, the UPC Court of Appeal may hear appeals on infringement and validity even if both matters were not decided in one but in two separate decisions on the merits (Rule 220.5 of the draft Rules of Procedure of the UPC).
On appeal, the Court of Appeal will review the decision or order of the Court of First Instance with regard to the parts of the decision or order contested and the reasons for setting aside the contested decision or order put forward by the appellant (see Rule 226 Rules of Procedure of the UPC). Depending on the result of the review, the Court of Appeal may, however, also have to decide issues that the Court of First Instance failed to decide but which it is necessary for the Court of Appeal to decide on appeal (Rule 242.2(b) Rules of Procedure of the UPC). The Court of Appeal will only in exceptional circumstances refer the action back to the Court of First Instance for retrial and decision (Art. 74(1) UPC Agreement, Rule 242.2(b) Rules of Procedure of the UPC).
Requests, facts and evidence which have not been submitted by a party during proceedings at first Instance may be disregarded by the Court of Appeal. When exercising this discretion, the Court of Appeal shall in particular take into account whether:
a) a party seeking to lodge new submissions is able to justify that the new submissions could not reasonably have been made during proceedings before the Court of First Instance,
b) the new submissions are highly relevant for the decision on the appeal,
c) the position of the other party regarding the lodging of the new submissions (Art. Rule 222.2 Rules of Procedure of the UPC).
An appeal by a party adversely affected may be brought against
a) final decisions of the Court of First Instance,
b) decisions terminating proceedings as regards one of the parties and
c) decisions or orders referred to in Articles 49(5), 59, 60, 61, 62 or 67 of the UPC Agreement (Article 73(1)(2)(a) UPC Agreement, Rule 220.1(a)-(c) Rules of Procedure of the UPC).
Orders, other than those referred to above, may be either the subject of an appeal together with the appeal against the decision or may be appealed with the leave of the Court of First Instance within 15 days of service on the Court’s decision to that effect (Article 73(2)(b) of the UPC Agreement, Rule 220.2 Rules of Procedure of the UPC).
If grant to leave has been refused, the party adversely affected may file a request for a discretionary review to the Court of Appeal within 15 calendar days (Rule 220.3 Rules of Procedure of the UPC).