UPC's Court of Appeal Rejects Alexion's Rehearing Bid, Stresses EPO Case Law as Non-Negotiable in Patent Disputes

Context: Things have not gone well so far for Alexion Pharmaceuticals’ patent infringement actions against Amgen and Samsung Bioepis. Six months ago, the Unified Patent Court’s (UPC) Court of Appeal (CoA) affirmed (December 23, 2024 ip fray article) the Hamburg Local Division’s (LD) orders denying preliminary injunctions (PIs; officially called “provisional measures” in the UPC). A British judge also decided against Alexion, independently but not without noting that the UPC CoA decision added to his conviction that he made the right call (May 21, 2025 ip fray article). By contrast, there were certain indications that Alexion and its outside counsel felt very strongly that were victims of judicial error, at least in the UPC. That resulted in a rare push for an appellate rehearing.

What’s new: In two parallel, materially consistent decisions dated June 19. 2025 (1, 2) and published yesterday (June 20), the CoA’s second panel threw out Alexion’s petitions for rehearing and seized the opportunity to set the record straight, effectively discouraging other parties and their counsel from bringing such petitions in the future except under the most egregious of circumstances, but also giving UPC representatives the definitive guidance that it’s their responsibility to keep track of European Patent Office (EPO) case law (Technical Boards of Appeal (TBAs) and Enlarged Board of Appeal (EBA)).

Direct impact: Alexion has to buy some additional costs and may have annoyed the second panel of the CoA by bringing a petition that, in the panel’s opinion, fell far short of what it takes to obtain a rehearing.

Wider ramifications: While Alexion and its counsel will get the benefit of the doubt in terms of having clutched to a hypothetical straw in a young jurisdiction, the next ones considering something similar will be expected to be aware of this decision. In a nutshell, petitions for rehearing are pointless unless there’s either been some criminal activity (which will most likely never be the case) or something comparably intolerable from the vantage point of the rule of law.

What doomed Alexion’s PI motions was that the Hamburg LD, but also the CoA, were unconvinced of the patent-in-suit being valid. And what added insult to injury: Alexion was accused of contradicting itself.

With not only a lot of money at stake but things possibly having become emotional, Alexion moved for reconsideration by requesting a rehearing. The lesson from the decision on those parallel petitions (one relating to Amgen, one relating to Samsung Bioepis, but practically it’s all the same, just two different defendants) is that CoA decisions really are the end of the road with exceptions that will be elusive.

Article 81(1) of the UPC Agreement (UPCA) envisions the theoretical possibility of a rehearing as an extraordinary remedy in two scenarios: a criminal offense or a fundamental procedural defect. Alexion wasn’t alleging anything criminal here, but what it described as a fundamental procedural defect was light-years away from a fundamental one in the CoA’s opinion.

The CoA does not give examples (as there aren’t any at this stage) of what would surmount that high hurdle, but it describes the standard in an instructive form:

In order to qualify as a ground for rehearing, a procedural defect must be so fundamental that it is intolerable for the legal system and overriding the principle that proceedings which have led to a final decision should not be re-opened in the interest of legal certainty.

The decision clarifies that “mere errors” are not enough. “Fundamental” is therefore synonymous with “intolerable” in this context, with two other requirements on top:

“[I]t can be established that without the defect the same decision would not have been taken (see judgment of 3 July 2014 in Kamino International Logistics and Datema Hellmann Worldwide Logistics, C-129/13 and C130/13, EU:C:2014:2041, paragraph 79 and the case-law cited).”
The affected party did not know about it or “already objected to during the proceedings leading to the decision or on appeal (R. 248 RoP), except where such objection could not have been raised during the proceedings before the Court of First Instance or the Court of Appeal.”
Toward the end (para. 27), the decision characterizes Alexion’s petition as not being based on a fundamental procedural defect but just on a different perspective:

Alexion in essence does not agree with the conclusions drawn by the Court of Appeal from the arguments and evidence before it. However, a mere disagreement with the reasoning and considerations by the Court of Appeal and the outcome of the case is not a ground for a rehearing.

It can be deduced from the decision that Alexion’s arguments related to a disagreement on facts, on what the decision elaborates on (the CoA notes that it can choose to ignore or discuss only briefly arguments that it considers meritless) and on the claim construction standard, which Alexion apparently thought the CoA should have advised of before the hearing. In that context, the CoA decision provides the clarification already mentioned further above: UPC practitioners cannot declare themselves surprised by the UPC applying new EPO EBA and TBA case law:

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. Although the Court of Appeal is not bound by such case law, there is reason to consider TBA decisions and – even more so – EBA decisions – since these Boards apply the same substantive law provisions of the European Patent Convention (EPC) as the Court. A similar approach has been and still is taken by national courts of the Contracting Members States and other countries party to the EPC, such as the UK, who have national laws that are largely based on the substantive law provisions of the EPC. When litigating before the Court, party representatives are thus expected to be also aware of the relevant case law developed by the TBAs and EBA.

Without putting it this way, the decision also explains that the right to be heard does not necessarily mean a right to make written submissions, nor does it constitute a hard obligation for the court to notify the parties in advance of its preliminary position on a key question. The latter is totally discretionary. If the court does it, you’re lucky. If it doesn’t, it’s not a procedural defect, much less a fundamental one.