UPC Court of Appeal: rehearing request dismissed in Alexion v. Samsung
On 19 June 2025, the Court of Appeal of the Unified Patent Court (UPC) delivered a significant decision in case UPC_CoA_402/2024, dismissing Alexion Pharmaceuticals’ application for rehearing following its unsuccessful attempt to obtain provisional measures against Samsung Bioepis.
Background of the case
The dispute originated from Alexion’s request for provisional measures before the Hamburg Local Division in relation to its European Patent EP 3 167 888 B1, covering a “treatment for paroxysmal nocturnal hemoglobinuria patients by an inhibitor of complement”. The request was rejected at first instance due to doubts concerning the patent’s validity. The Court of Appeal upheld the decision and dismissed Alexion’s appeal.
Subsequently, Alexion applied for a rehearing pursuant to Article 81(1)(b) UPCA and Rule 247 RoP, alleging a fundamental procedural defect. It argued that the Court had adopted a new standard for claim interpretation without granting Alexion the right to be heard (Article 76(2) UPCA), and that the decision was based on incorrect facts.
The legal framework: a high threshold for rehearings
The Court highlighted that a rehearing is not a regular appeal proceeding, but an extraordinary legal remedy that, under Article 81(1) UPCA, may exceptionally be granted only if a final decision is tainted by a criminal act or a fundamental procedural defect. Such a defect must be “intolerable for the legal system” and capable of altering the outcome of the decision.
The Court also clarified that a rehearing is not available for mere errors or disagreements over the interpretation of the law or the assessment of the parties’ arguments or evidence, unless those amount to a breach of fundamental procedural rights.
No violation of the right to be heard
In dismissing Alexion’s application, the Court found that there was no violation of the right to be heard under Article 76(2) UPCA. In fact, the Court underscored that, as opposed to Alexion’s claims, the right to be heard does not require
that a party must always have had the opportunity to provide comments in writing; or
that advance notice of a court’s interpretation is given to the parties, unless the interpretation is truly unforeseeable e.g. because it contradicts well-established case law.
Furthermore, although the right to be heard in principle also applies in provisional measures proceedings (and not only in merits proceedings), a less stringent standard applies or, depending on the circumstances, the principle may not apply at all (e.g. in ex parte proceedings).
Decision
The Court ultimately found that none of Alexion’s arguments demonstrated a fundamental procedural defect. Instead, the application reflected a disagreement with the Court’s reasoning and conclusions, which grounds cannot justify a rehearing.
The application was therefore dismissed and Alexion was ordered to bear Samsung’s costs of the rehearing procedure.
