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 Case Law
Rule 36: Further exchanges of written pleadings

Court of First Instance - Düsseldorf (DE) Local Division, Order dated 04/03/2025, Brodrene Hartmann A/S (Case/ Registry number: App_1153/2025, ORD_7101/2025)
Example of decision on additional written briefs that can only be admitted if a reasoned request is made before the deadline for closing the written phase: "Pursuant to R. 36 of the Rules of Procedure, the judge-rapporteur may allow the exchange of further written submissions within a time limit to be set in response to an application by a party, accompanied by a statement of reasons, submitted one day before the day on which the judgerapporteur wishes to conclude the written procedure.
[...] In the present case, the plaintiff did not initially make such an application, but decided instead to make a supplementary submission on the infringement of the patent in dispute in its reply to the action for revocation and, in this context, to invoke an equivalent infringement of the patent in dispute for the first time and without any specific reference to the action for revocation. Such an approach runs counter to the procedural sequence provided for in the Rules of Procedure, according to which each party has two written submissions available in the written proceedings in order to make submissions on the issue of patent infringement. This quota is usually exhausted with the submission of the duplicate in the infringement proceedings. If a party nevertheless considers further written submissions to be necessary, it has the option of applying for the exchange of further written submissions until the conclusion of the written proceedings with a reasoned request in accordance with R. 36 of the Rules of Procedure. The decision as to whether to allow further written submissions is at the discretion of the judge rapporteur. Since the preamble to the Rules of Procedure stipulates the objective of holding the oral proceedings within one year of the filing of the action, substantial grounds must be presented for the admission of further written submissions (see Tilmann/Plassmann/Steininger, Unitary Patent/Unified Patent Court, R. 36 Rules of Procedure, para. 7). Submissions that are introduced into the written proceedings outside the pleadings provided for in the Rules of Procedure without prior admission in accordance with R. 36 of the Rules of Procedure are not taken into account in the further proceedings and in the decision-making process."

Court of First Instance - Paris (FR) Local Division, Order dated 05/02/2025, Hurom Co., Ltd (Case/ Registry number: App_4027/2025, ORD_4336/2025)
Example of a decision on allowing additional written pleadings: "In HUROM’s statement filed on December 16, 2025, which is part of workflow 3 of the written procedure, the Claimant was required to respond solely to the validity of the patent including the proposed amendment issues, presented in their statement from NUC and WARMCOOK dated November 14, 2024. If HUROM considered that new arguments regarding the infringement issue needed further submissions, it was up to HUROM to submit a reasoned request to the judge-rapporteur pursuant to R 36 RoP.
[...] In accordance with the main principle of fairness (point 2 of the preamble), R 36 RoP allows the parties to request further written submissions to the judge-rapporteur upon reasoned request. Under R 36 RoP, the parties have the right to ask for further statements before the closure of the written procedure. The Defendants did not contest that they raised new arguments on infringement issues in their statement dated November 16, 2024. According to HUROM, their last response should be concise (no more than 8 pages). To secure fairness and equity of the proceedings, and regarding the short timeline requested by the Applicant, the judge-rapporteur considers that HUROM’s request can be granted without affecting the timeframe of the proceedings."

Court of First Instance - Milan (IT) Local Division, Order dated 15/01/2025, Alpinestars S.p.A. (Case/ Registry number: App_1176/2025, ORD_1495/2025)
Example of decision on granting, upon reasoned request, a deadline for other parties to submit observations on the EPO decision while preserving adversarial equality: "On a reasoned request by the other parties, both the plaintiff and the other defendants, they may be granted a period within which to submit their observations on the EPO’s decision, in accordance with the procedural faculty provided for in Rule 36 of the Rules of Procedure. It follows that the solution adopted does not violate the adversarial principle and complies with the equality of the parties in the right of defence."

Court of First Instance - Paris (FR) Local Division, Order dated 11/12/2024, DexCom, Inc. v. Abbott Diagnostics GmbH, Abbott Diabetes Care Inc., Abbott Laboratories, Abbott Gesellschaft m.b.H., Abbott GmbH, Abbott Scandinavia Aktiebolag, Newyu,Inc., Abbott B.V., Abbott, Abbott S.r.l., Abbott Laboratories A/S, Abbott France, Abbott Logistics B.V., Abbott Oy (Case/ Registry number: ORD_63909/2024)
Example of decision on new gorunds: "The order pursuant to Rule 36 RoP issued by the judge-rapporteur relates to adding some argu ments to the debate related to some specific terms regarding claim interpretation, but it did not authorise the defendant to raise a new ground for revocation. The UPC procedure is a front-loaded system and the Court finds no legitimate reason for the defendant, which had already stated its own claim interpretation in its Statement of Defence and counterclaim, to raise a new ground for revocation at a later stage of the proceedings concerning the validity of the patent as granted. The additional ground concerning the patent as granted raised in the Rejoinder to the reply to the Statement of Defence is inadmissible pursuant to Rule 9.2 RoP."

Court of First Instance - Düsseldorf (DE) Local Division, Order dated 30/10/2024, FUJIFILM Corporation v. Kodak GmbH (Case/ Registry number: App_54506/2024, ORD_54796/2024)
Example of decision on further exchanges of written pleadings: "The fact that the Claimant refers, in support of its request, to the fact that it had only one oppor tunity to submit written observations on the right of prior use is a consequence of the Rules of Procedure and of the time limits laid down therein. However, in order to give the Claimant the opportunity to present further arguments if necessary, R. 36 RoP provides for the possibility of requesting permission to file additional pleadings. In assessing the prospects of success of such request, the Court must, on the one hand, take into account of the reasons put forward by the Claimant as to why, in its view, further pleadings are necessary. However, the Court must also take into account the impact of further pleadings on the further course of the proceedings and the associated risk of delay."

Court of First Instance - Paris (FR) Central Division - Seat, Order dated 27/02/2024, Meril Italy srl / Edwards Lifesciences Corporation (Case number UPC_CFI_255/2023 ORD_10310/2024)
Example of decision on the subsequent request to amend the patent and the case: “8. The referred Rule 36 ‘RoP’, applicable to the revocation actions by virtue of Rule 58 ‘RoP’, states that ‘Without prejudice to the powers of the judge-rapporteur pursuant to Rule 110.1, on a reasoned request by a party lodged before the date on which the judge-rapporteur intends to close the written procedure [Rule 35(a)], the judge-rapporteur may allow the exchange of further written pleadings, within a period to be specified. Where the exchange of further written pleadings is allowed, the written procedure shall be deemed closed upon expiry of the specified period..”
“9.The provision confers to the judge-rapporteur the discretionary powers to allow further exchange of written pleadings in addition to the ones mentioned in Rule 43 ‘RoP’.”
“11. With particular regard to the statutory regime concerning the written procedure, it has to be considered that this regime shall, in principle, ensures that proceedings are carried out in compliance with the principle of due process, allowing the parties to illustrate the facts and the legal arguments on which a claim or a defence is based and to take position on the arguments, in fact and in law, of the opposing party, and, as a result, delimiting the subject-matter of the proceedings.”