UPC Court of Appeal
UPC_CoA_317/2025
APL_16185/2025 (appeal)
UPC_CoA_376/2025
APL_19989/2025 (cross-appeal)
App_16918/2025
App_21416/2025

ORDER
of the Court of Appeal of the Unified Patent Court
on 14 August 2025
concerning an application for leave to change the claim (R. 263 RoP)
and a request for exchange of further written pleadings (R. 36 RoP)

HEADNOTES:
- A change of claim through the introduction of a subsidiary claim will be denied when it broadens the claim in relation to what was claimed and alleged before, and there is no explanation why this could not have been made with reasonable diligence at an earlier stage.
- On appeal, a party is entitled to make references to what was said at the oral hearing during the first instance proceedings, subject to the duty to not misrepresent cases or facts (R. 284 RoP).

KEYWORDS:
- Change of claim, exchange of further written pleadings

APPELLANT, RESPONDENT IN THE CROSS-APPEAL (AND APPLICANT IN THE PROCEEDINGS BEFORE THE CFI)
Barco N.V., Kortrijk, Belgium
(hereinafter referred to as Barco)
represented by attorney-at-law Christian Dekoninck, Taylor Wessing, Brussels, Belgium, and other representatives from that firm

RESPONDENTS AND CROSS-APPELLANTS (AND DEFENDANTS IN THE PROCEEDINGS BEFORE THE CFI)
1. Yealink (Xiamen) Network Technology Co. Ltd., Xiamen City, Fujan, Peoples Republic of China
2. Yealink (Europe) Network Technology B.V., Amsterdam, The Netherlands
(hereinafter jointly referred to as Yealink)
represented by attorney-at-law Ruud van der Velden, Hogan Lovells International, Amsterdam, The Netherlands, and other representatives from that firm

PATENT AT ISSUE
EP 3 732 827

LANGUAGE OF THE PROCEEDINGS
English

PANEL AND DECIDING JUDGES
Panel 2
Rian Kalden, presiding judge and legally qualified judge
Ingeborg Simonsson, legally qualified judge and judge-rapporteur
Patricia Rombach, legally qualified judge
Christoph Norrenbrock, technically qualified judge
Andrea Perronace, technically qualified judge

IMPUGNED ORDER OF THE COURT OF FIRST INSTANCE
ORD_68979/2024 in the proceedings for provisional measures, in ACT_54438/2024, UPC_CFI_582/2024, issued by the Brussels Local Division on 21 March 2025.

SUMMARY OF THE FACTS (INSOFAR AS RELEVANT)
1. Barco brought an Application for provisional measures against Yealink before the Court of First Instance, Brussels Local Division, based on alleged infringement of the patent at issue.
2. Through the impugned order, the Brussels Local Division dismissed the Application for lack of urgency.
3. Barco appealed and requested (in brief) the Court of Appeal to set aside the impugned order and grant the provisional measures as requested by Barco in its Application for provisional measures. Barco also applied (App_16918/2025) for leave to change its claim. Yealink was heard about this application.
4. Following Yealink’s Statement of response, Barco applied for an exchange of further written pleadings (App_21416/2025).
5. Barco was ordered to set out in detail whether it alleges that Yealink has brought forward facts or evidence which were not submitted during the first instance proceedings. Yealink was heard about Barco’s allegations.

INDICATION OF THE PARTIES’ REQUESTS AND THEIR SUBMISSIONS
The application for leave to change the claim
6. With the application for leave to change its claim pursuant to R. 263 RoP, Barco is requesting that the Court of Appeal, in subsidiary order, grants a preliminary injunction against Yealink, with immediate effect after service of the order to be rendered in this matter, to prohibit the continuation of the infringement, in particular by making, offering and / or placing on the market the WPP30 (or on any other similar device having the same functionalities) for the purposes of implementing the method of Claim 1 or the system of Claim 12 of the patent at issue.
7. Barco argues that leave should be granted, as providing more limited requests which find basis in the same facts as the broader requests, cannot hinder Yealink in the conduct of its action and should therefore be allowed.
8. Yealink is of the opinion that Barco’s application for leave to amend its claim to include the requested subsidiary claim should be rejected, because the requirements of R. 263(2) RoP have not been met, it is not “a more limited request”, the interest has not been alleged or substantiated and the claim is not clear or unambiguous.
Application for exchange of further written pleadings (R. 36 RoP)
9. Barco has requested that an application for exchange of further written pleadings be granted and consequently that Barco be authorized to submit within 15 days of the service of the order an additional reply in response to sections 7 to 18 of Yealink’s Statement of response. In the subsidiary, Barco has requested that the Court of Appeal declare that sections 7 to 18 of Yealink’s Statement of response will be disregarded (R. 9.2 RoP).
10. According to Barco, the Statement of response contains new arguments in relation to the technical background, claim construction, direct and indirect infringement, alleged lack of novelty and inventive step, inadmissible extension, insufficiency of disclosure, factual necessity, weighing of interests and remarks on the measures sought by Barco (sections 7 to 18 of the Statement of response). Yealink’s response goes beyond R. 236 and 237 RoP and Barco wants to ensure it has the possibility to reply to these new arguments.
11. In reply, Yealink has submitted that no new facts or evidence, or if relevant: new arguments, have been introduced in Yealink’s Statement of response and cross-appeal and requested the Court of Appeal to reject Barco’s application for further exchange of written pleadings; alternatively, if Barco is allowed a further written reply, to grant Yealink a corresponding opportunity to respond.

GROUNDS FOR THE ORDER
The application for leave to change the claim
12. Pursuant to R. 263 RoP, a party may at any stage of the proceedings apply to the Court for leave to change its claim. Any such application shall explain why such change was not included in the original pleading. Leave shall not be granted if, all circumstances considered, the party seeking the amendment cannot satisfy the Court that (a) the amendment in question could not have been made with reasonable diligence at an earlier stage; and (b) the amendment will not unreasonably hinder the other party in the conduct of its action. Leave to limit a claim in an action unconditionally shall always be granted.
13. These requirements are not met in the present case, because the introduction of the subsidiary claim broadens the claim in relation to what was claimed and alleged before, and there is no explanation why this could not have been made with reasonable diligence at an earlier stage. Furthermore, the change will unreasonably hinder Yealink in the conduct of its action.
14. In its Application to the Local Division, Barco requested that the Court, for the Contracting Member States in which the patent is in force:
a. grants a preliminary injunction against the Defendants, with immediate effect after service of the order to be rendered in this matter, to prohibit the continuation of the infringement, in particular:
i. by making, offering and / or placing on the market the Yealink Set Ups which implement the method of claim 1 or which implement the system of claim 12 of EP 3 732 827; or
ii. by importing or storing the Yealink Products for the purposes of implementing the method of claim 1 or the system of claim 12 of EP 3 732 827; or
iii. by making, offering and / or placing on the market Yealink Products with a computer program as protected by claim 13 of EP 3 732 827;
or in the discretion of the Court, in the alternative,
grants a preliminary injunction against the Defendants prohibiting them from infringing the patent with immediate effect after service of the order to be rendered in this matter, by making, offering and / or placing on the market the Yealink Set Ups, or importing or storing the Yealink Products for those purposes.
15. Barco is now applying for leave to introduce a subsidiary claim “to prohibit the continuation of the infringement, in particular by making, offering and / or placing on the market the WPP30 (or on any other
similar device having the same functionalities) for the purposes of implementing the method of Claim 1 or
the system of Claim 12 of EP 3 732 827.”
16. The first part of this subsidiary claim ‒ to prohibit the continuation of the infringement in particular by making, offering and / or placing on the market ‒ adds nothing to what was claimed already. The second part however deviates from the main claim (litera a.i.), since instead of “the Yealink Set Ups” it reads “the WPP30 (or on any other similar device having the same functionalities)”. There are some other differences as well, but those can be left aside here.
17. Although the subsidiary claim may at first glance look more limited than the (still upheld) primary claim, it must be understood in relation to how the alleged infringements were presented at first instance.
18. At first instance, Barco alleged that in the first system, the system comprises the Yealink WPP30 and a MeetingBar Product in which the MeetingBar Product is an all-encompassing video bar (“Yealink Set Up including the all-encompassing Yealink MeetingBar”), while in the second system the system consists of the Yealink WPP30, the Yealink RoomCast and a stand-alone video/audio device (“Yealink Set Up including the RoomCast and stand-alone video/audio device”).
19. The Local Division (para 25) noted that “Barco refers to “Set-Up(s)” wherein the YEALINK devices […] are relevant. BARCO holds that “the typical user flow” when implementing the meeting room system by using the YEALINK devices […] proves an infringement of the patent claims 1, 12 and 13. This user flow when implementing the meeting room system is visually represented by BARCO by indicating the following allegedly infringing Set-Ups, detailed below:


20. Barco provided the following visual representations of the alleged infringements at first instance:
21. The alleged infringements thus concern the Yealink Set-Ups (see esp. para 44 of the Application) and the (unamended) request i accordingly concerns the Yealink setups. Although the (unamended) request ii also concerns ‘Yealink products’, it only relates to importing or storing. Request iii also concerns ‘Yealink products’, but it refers to claim 13 and not to claims 1 and 12 as asserted in the amended request. The Set-Up(s) was also explained by reference to Annex C4, where several devices, including WPP 30, are illustrated. Given that the allegations that correspond to claim i are for set-ups comprising WPP 30, but not for WPP 30 alone, it would effectively broaden the procedural claim if Barco’s subsidiary claim would be allowed. The same applies for the part of the subsidiary claim that reads “or on any other similar device having the same functionalities”.
22. For these reasons, the application for leave to change the claim shall be denied.
The request for exchange of further written pleadings
23. Pursuant to R. 36 RoP the judge-rapporteur may allow the exchange of further written pleadings, within a period to be specified, on a reasoned request by a party lodged before the date on which the judge-rapporteur intends to close the written procedure.
24. The judge-rapporteur has referred this matter to the panel (R. 102.1 RoP).
- The first limb of Barco’s request
25. What Barco brings forward in support of its application for a further exchange of pleadings relies partly on the fact that Yealink has referred in its Statement of response to conversations between the panel of judges and Barco’s representatives at the oral hearing. Barco complains that it has not yet had the opportunity to respond to these statements in writing and argues that this is crucial as Yealink quotes statements made by Barco’s representatives in an isolated way, without giving a full picture of what was said. Barco has referred to paras 1.10, 4.13, 8.5, 8.15-20, 8.65 and 12.19 of the Statement of response. Barco’s view is however based on an incorrect understanding of the procedure.
26. If an oral hearing is held, it is part of the proceedings for provisional measures (R. 205 RoP and R. 210 RoP). The significance of an oral hearing in proceedings for provisional measures is further underlined by R. 210.2 RoP which provides that the Court may order the parties to provide further information, documents and other evidence before or during the oral hearing, including evidence to enable the Court to make its decision in accordance with R. 211 RoP (see also Art. 62 (4) UPCA).
27. The powers of the Court in this regard means that information, documents or evidence may emerge during the oral hearing. The parties will also have the opportunity to explain properly their arguments during the oral procedure (Art. 52 (3) UPCA).
28. According to R. 222.1 RoP, the Court of Appeal shall consult the file of the proceedings before the Court of First Instance. Although this does not routinely include listening to the audio recording from the oral hearing at first instance (the oral hearing being audio recorded pursuant to R. 115 RoP), the Court of Appeal can do so in full or in part in its discretion.
29. It follows that Yealink is entitled to make references to what was said at the oral hearing, subject of course to the duty to not misrepresent cases or facts (R. 284 RoP). If Barco experienced a need to nuance or correct statements it made at the oral hearing, it could have done so in the Statement of grounds of appeal.
- The second limb of Barco’s request
30. Barco also complains that Yealink develops new arguments, not developed in first instance, in the Statement of response.
31. According to Barco, in paras. 8.2 and 8.3 Yealink introduces new arguments which it did not raise in first instance, at least it rephrases the arguments in such a way that it leads to a new line of arguments. However, the request is not reasoned in this part since Barco has not explained its allegation. The same applies to Barco’s assertions about paras 13.2, 13.4, 13.5 and 13.18.
32. Barco further asserts that
- in para. 9.8 Yealink includes an argument which has been used in first instance to refute Barco’s
infringement argumentation concerning feature 1.f. However, this argument is now introduced under
feature 1.c.;
- in para. 9.12 Yealink replies to a statement Barco made in its Reply in first instance, although this could
have been included in Yealink’s Rejoinder;
- in para. 9.23 Yealink twists Barco’s words;
- in para. 12.3 Yealink develops an entirely new introductory argument thereby referring to Fig. 1b, a
figure that has never been explicitly referred to previously;
- in para. 12.15 Yealink introduces an argument made in its technical introduction during first instance;
now, for the first time, Yealink uses this argument in relation to its novelty attack based on US 118;
- in para 12.17 Yealink further develops a line of arguments based on the newly introduced Fig. 1b;
- in paras. 12.19 – 12.23 Yealink refers to a new figure and paragraph – Fig. 11 and para. [0586] – of US
118 it has not referred to in its written submissions in first instance. Based on these new references,
Yealink also further develops its arguments on this part;
- in para. 12.20, Yealink refers to paragraphs of its Objection: however these paragraphs do not relate to
its line of arguments on novelty;
- in para. 12.24 Yealink refers to Fig. 1b and para. [0457] of US ‘118, not referred to during first instance
proceedings;
- in para. 12.32 Yealink introduces argumentation it previously only referred to with regard to feature 1.c
under feature 1.f.;
- in para. 12.36 relating to the novelty attack based on US 929, reference to Fig. 1 of US 929 is made.
However, Yealink introduced a new color-code in order to further develop its line of arguments;
- in paras. 12.42 and 12.43 Yealink introduces an argument it only made in relation to feature 1.f in first
instance under feature 1.c;
- in paras. 12.51 and 12.52 Yealink further develops a squeeze argument with infringement it has not yet
developed this way in its written submissions in first instance;
- in para. 12.56 relating to the novelty attack based on WO 972, reference is made to Fig. 3. However,
Yealink introduced a new color-code in order to further develop its line of arguments;
- in para 12.64 Yealink introduces an argument it only made in relation to feature 1.f in first instance
under feature 1.c;
- in para. 12.73 Yealink introduces under novelty an argument it previously only made in relation to its
technical introduction;
- title 13.2 “Lack of inventive step starting from EP 009” is structured entirely different. Moreover, during
the proceedings in first instance, Yealink had not yet developed this detailed feature-by-feature analysis
before;
- in para. 13.4, 13.5 and 13.18 Yealink refers to para. [0096], [0093] and [0090] of EP 009 in a way it has
not done during the first instance proceedings, thereby further developing its argumentation. Yealink
referred to these paragraphs before but in a different way and for different arguments;
- in para. 13.9 Yealink refers to para. [0112] of EP 009 to which it had not yet referred in first instance and
makes a whole new argument about it;
- in para. 13.12 Yealink introduces new argumentation, including the new reference to para. [0100] of EP
‘009 and using statements previously used in its technical introduction to further substantiate its
argument on inventive step;
- in para. 13.13 Yealink refers to the new paragraph – para. [0217] – and develops new arguments it has
not developed in its written submissions in first instance;
- in paras. 13.14‒13.16 Yealink develops a new squeeze argument with infringement which it did not
make in first instance;
- in para. 13.20 Yealink refers for the first time to para. [0094] of EP 009 in relation to feature 1.g.
Previously, this paragraph was only referenced with regards to alleged presence of feature 1.a under
novelty;
- in para. 13.21 Yealink introduces a completely new argument which it did not develop in first instance;
- in paras. 13.27 and 13.29 Yealink develops new arguments which have never been made during the
proceedings in first instance.
33. Barco’s assertions about new content in paras 9.8, 9.12, 9.23, 12.15, 12.19-12.23, 12.24, 12.32, 12.42-12-43, 12.51-12.52, 12.64, 13.21, 13.27 and 13.29 have been refuted by Yealink with reference to its submissions at first instance.
34. Barco’s assertions about new content in para 12.3 and 12.17 fail since Fig. 1b of US 118 was referred to in Yealink’s Rejoinder at first instance, in para 9.15. The figure as such was not copied in the submission, but was present in exhibit HL09.
35. As regards Barco’s assertion that Yealink in 12.73 introduces under novelty an argument it previously only made in relation to its technical introduction, the assertion that feature 1.f was disclosed by WO ‘972 in relation to novelty was made by Yealink at first instance and there was extensive argumentation to this effect.
36. Similarly, the lack of inventive step starting from EP ‘009 was discussed at length in Yealink’s first instance submissions, and Barco fails to explain what is new in title 13.2 of Yealink’s Statement of response.
37. It is correct, as Barco asserts, that para [0112] of EP 009 was not referred to at first instance, but Barco has not explained how Yealink “makes a whole new argument about it”. The same applies to Barco’s complaints about Yealink’s references to paras [0100] and [0217] of EP 009. Should this be relevant, Barco will have the opportunity to comment on this during the oral hearing.
38. In paras 13-14‒13-16 of the Statement of response, Yealink discusses lack of inventive step starting from EP ‘009, especially feature 1.f, and makes a squeeze argument with reference to what Barco argued in its first instance Reply. This is within the range of what can be done under R. 222 RoP. Should this be relevant, Barco will have the opportunity to comment on this during the oral hearing.
39. Yealink’s reference in para 13.20 to para. [0094] of EP 009 in relation to feature 1.g in relation to inventive step, while previously this paragraph was only referenced with regards to alleged presence of feature 1.a under novelty, is also within the range of what can be done under R. 222 RoP. Should this be relevant, Barco
will have the opportunity to comment on this during the oral hearing.
40. Contrary to what Barco is asserting, colour-coding figures to make them comprehensible is uncontroversial as such.

ORDER
I. Barco’s application for leave to change the claim is denied.
II. Barco’s request for an exchange of further written pleadings is rejected.
III. Barco’s request that the Court of Appeal declare that sections 7 to 18 of Yealink’s Statement of response will be disregarded is rejected.

Issued on 14 August 2025