# News Detail Share now [](https://www.linkedin.com/uas/login?session_redirect=https%3A%2F%2Fwww.linkedin.com%2FshareArticle%3Fmini%3Dtrue%26url%3Dhttps%3A%2F%2Fwww.hoyngrokhmonegier.com%2Fes%2Fnoticias%2Fdetail%2Fwhat-can-still-be-added-on-appeal-key-learnings-and-practical-takeaways-on-late-filing-from-recent-upc-coa-case-law%26title%3DWHAT%20CAN%20STILL%20BE%20ADDED%20ON%20APPEAL%3F%20%20-%20key%20learnings%20and%20practical%20takeaways%20on%20late%20filing%20from%20recent%20UPC%20CoA%20case%20law%26summary%3D "Linkedin") # WHAT CAN STILL BE ADDED ON APPEAL? - key learnings and practical takeaways on late filing from recent UPC CoA case law 04 noviembre 2026 UPC General News News Unified Patent Court (UPC) Hot Topic Publication As we all are well aware, UPC proceedings are front-loaded: Parties are expected to put forward their case, including the relevant facts and evidence, at an early stage, if not as early as possible. But does this mean that the record is completely closed once the case reaches the Court of Appeal (“CoA”)? This question is what we aim to address in this blog post. Why focus on this now? In recent decisions, the Court of Appeal has given further guidance on what parties can and cannot still add or change on appeal. The decisions draw a practical line and show an important distinction between, on the one hand, further developing a case already made in first instance and, on the other hand, trying to build a new factual or evidentiary case on appeal. ##### **New legal arguments are in principle allowable but new evidence on appeal needs a good excuse** The starting points of the discretionary assessment are Article 73(3), 73(4) UPCA, Rule 222.1, and in particular 222.2 RoP. Under Rule 222.2, the Court of Appeal may disregard requests, facts and evidence which were not submitted before the Court of First Instance (“CFI”). In doing so, the CoA looks at whether the submission could reasonably have been made earlier, its relevance for the appeal, and the position of the other party. The wording is important: While Rule 222.1 RoP determines that “requests, facts, evidence and **arguments**” can constitute the subject-matter of an appeal, Rule 222.2 mentions that new “requests, facts and evidence” – but not arguments – can be disregarded. The Court of Appeal had already made this clear in ***Meril v Edwards** (*CoA, 21 November 2024, UPC\_CoA\_511/2024, mn. 12; and confirmed in *Sinocare and Menarini v Abbott,* CoA, 30 March 2026, UPC\_CoA\_899/2025, mn. 46–49). A new legal argument may be raised on appeal if it is based on facts and evidence already submitted in first instance. More recently, in ***Hartmann v Omni-Pac*** (CoA, 19 August 2026, UPC\_CoA\_908/2025, 909/2025 and 918/2025, mn. 26–27), it applied the same reasoning to claim construction. Since claim construction is a matter of law, a party was allowed to put forward a new interpretation of the claim on appeal. There is, however, a clear limit. Being allowed to develop a legal argument does not mean that a party is also free to introduce new evidence supporting the new argument. Again, in ***Hartmann v Omni-Pac** (*CoA, 19 August 2026, UPC\_CoA\_908/2025, 909/2025 and 918/2025, mn. 31-34), new exhibits filed on appeal were not admitted because they could have been submitted earlier, their relevance was limited and their admission would be to some detriment to the other party. The Court also explicitly held, that *Hartmann* “*has not been able to justify that the new submissions could not reasonably have been made during proceedings before the Court of First Instance.”* Recent CoA case law further shows that the same distinction can be more difficult where a party relies on a document that already was in the proceedings but only on appeal wants to use that document in a different way. In ***Nera v Xiaomi*** (CoA, 30 June 2026, UPC\_CoA\_692/2025 and 854/2025, mn. 23–25). Xiaomi had relied on prior art documents at first instance to argue a lack of novelty, based on the broad claim construction that Nera had argued for a finding of infringement. On appeal, Xiaomi wanted to use the same documents for new inventive step attacks based on its own narrower claim construction. The CoA rejected these attacks because they required a different factual and technical discussion which Xiaomi could have already initiated at first instance. They were not merely different legal conclusions drawn from the same factual case. The fact that a document is already on file thus does not necessarily mean that every possible attack based on that document can still be developed on appeal. The procedural history is important in this regard. We also point to CoA, 2 June 2026, UPC\_CoA\_312/2025, mn. 126–127, 134, 237–240 –*Kodak v. Fujifilm* in this context, where the Court allowed additional evidence supporting an existing prior-use fact that the other side had disputed in its Reply. Material excluded at first instance did not automatically become part of the appeal. The appealing party had to challenge the exclusion and explain why the Court should consider it. However, this can also work the other way: In ***Hefei v Grundfos*** (CoA, 27 May 2026, PC\_CoA\_622/2025 and 623/2025, mn. 79, 92–94), the Court of Appeal held that further factual submissions are not necessarily “new” if they merely “further particularise and clarify an already coherent case presented at first instance”. We note that the decision also confirms that undisputed facts cannot be rejected as late filed on appeal (mn. 93, with reference to CoA, 3 October 2025, UPC\_CoA\_534/2024, mn. 208). ##### **Looking at PI proceedings** Recent preliminary injunction cases provide further examples of how the Court of Appeal applies the principles described. In sum, PI appeals may call for some flexibility, but the CoA considers the circumstances rather than applying a blanket exception. In ***Angelalign v Align*** (CoA, 8 July 2026, UPC\_CoA\_36/2026, mn. 159), the Court of Appeal recognised that the summary nature and tight timelines of PI proceedings may, depending on the circumstances, justify a somewhat more lenient approach. At the same time, it warned that there may be less reason to be lenient towards a defendant who was aware of the patent, launched products at risk and should therefore have been prepared for PI proceedings. Although the corresponding deadline had been extended, the defendants had raised non-infringement arguments late in the first-instance proceedings and sought to add a video and witness statement only on appeal. The CoA refused the new material because it could have been prepared earlier and would also introduce a fresh invalidity attack that the patentee had not been able to respond to at first instance. A similar approach can be seen in ***Occlutech v Lepu** (*CoA, 18 June 2026, UPC\_CoA\_907/2025, mn. 21, 22). On appeal, Lepu relied on new prior art, including a master’s thesis. The Court of Appeal was not convinced that the material could not reasonably have been found and filed earlier. The thesis concerned a device linked to a company which Lepu had acquired years before. The new material also raised questions about its translation, disclosure and enablement which had never been discussed in first instance. Lepu did also not attend the oral hearing, thus the Court additionally was unable to discuss issues raised by the new prior art. The Court of Appeal refused to admit it. ##### **New or modified Auxiliary Requests on appeal?** The recent cases on auxiliary requests point in a similar direction. In ***Hurom v NUC*** (CoA, 28 August 2026, UPC\_CoA\_678/2025, mn. 30 ff.), Hurom filed two new auxiliary requests with its Grounds of Appeal. It argued that it could not have expected the claim construction adopted by the CFI. The Court of Appeal disagreed and held that the requests are inadmissible. The relevant claim construction had already been argued by NUC in first instance. Hurom could therefore have anticipated the issue and filed the auxiliary requests earlier. In ***Advanced Brain Monitoring v Philips*** (CoA, Order of 22 July 2026, UPC\_CoA\_63/2026, mn. 9 ff.), by contrast, the Court left the admissibility question for consideration with the appeal as a whole. The same outcome is expected for Sanofi v Dr. Reddy‘s, STADA, Zentiva (CoA, UPC\_CoA\_22/2026, 27/2026). An auxiliary request filed with the grounds of appeal is not automatically in, and a decision on admissibility may depend on the full procedural history. The CoA therefore rejected a request by Philips to immediately decide on the admissibility of the auxiliary requests prior to Philips’ statement of response to the appeal. That this is, however, not an automatism, was shown in the PI case ***ONWARD Medical v Niche*** (CoA, 27 March 2026, UPC\_CoA\_898/2025, mn. 59 ff.). ONWARD relied on a modified auxiliary request on appeal which was not identical to the request before the Munich Local Division. The Court of Appeal nevertheless admitted it. The change followed from the LD’s interpretation of a claim feature and did not put Niche in a materially different position. Niche could respond to the modified wording, relied on the same invalidity arguments and prior art as before and did not argue that a new prior art search was required. The request was also filed with the Grounds of Appeal, giving Niche the full response period. ##### **Takeaways – “cheatsheet” to keep in mind** In practice, parties should ask themselves the following questions before submitting new arguments (factual or legal) on appeal: - Could we reasonably have raised and foreseen this in first instance? Is there a sufficient explanation why this could now have been submitted earlier? - Is this really a new factual or evidentiary case, or only a further legal argument based on the existing record? - How relevant is this for the case? - Can the other party still properly respond, or would admission effectively deprive it of an instance? - Do we need to take a separate procedural step on appeal to preserve our position? By [*Stephanie de Beer*](https://www.hoyngrokhmonegier.com/es/our-team/legal-experts/stephanie-de-beer)***,*** [*Chiara Elena Prinz*](https://www.hoyngrokhmonegier.com/es/our-team/legal-experts/chiara-elena-prinz-llm)***,*** [*Valentin Wagner*](https://www.hoyngrokhmonegier.com/es/our-team/legal-experts/valentin-wagner)*, and* [*Akiva Friedmann*](https://www.hoyngrokhmonegier.com/es/our-team/legal-experts/akiva-friedmann)