“Action manifestly bound to fail” (R. 361 RoP, R. 220.3 RoP) must be reserved for clear-cut cases.
It should not result in a full exchange of arguments and evidence, as is clear from the use of the words ‘manifestly inadmissible’, and should not require further in-depth analysis, as rightly pointed out in the impugned order. Microsoft has failed to demonstrate that a review of the impugned order on the requirement set under R. 361 RoP is necessary to ensure a consistent application and interpretation of the RoP or any other objective of the discretionary review procedure.
Microsoft’s position that the impugned order is incorrect and does not provide a correct interpretation of Art 48(5) UPCA, R. 8.1 and R. 290.2 RoP, and Art. 2.4.1 of the Code of Conduct for Representatives who appear before the Unified Patent Court, is not sufficient for the Court to grant Microsoft’s application, in particular as the issue of independence of a UPC representative is also the subject matter of a R. 220.2 RoP appeal currently pending, during which both Microsoft and Suinno have the opportunity to address it thoroughly.
