UPC CFI, LD Munich,13 January 2026 : Re-establishment of rights granted , dissenting opinion issued.
26-03-2026 Print this page
Re-establishment of rights granted in the context of a failure to observe a time limit for initiating a procedure for cost decision in the context of a cost ratio. ( Rule 320 RoP , Rule 151 RoP) Dissenting opinion issued pursuant to Article. 36 Statute of the UPC & Article 78 UPCA.
Claimant missed the application deadline (Rule 151 RoP).
Where a cost ratio has been determined, both parties are required to lodge within the time limit an application for a decision on their respective costs.
By contrast, it is the opinion of the majority of the panel that the possibility for the other party to comment is limited to raising objections to the cost items listed by the applicant party - such objections cannot form the basis for offsetting the other party’s own regularly incurred cost items. (Rule 156.1 RoP).
Where a party has failed to observe a time limit, despite all due care having been taken, the relevant panel of the Court may upon the request of that party re-establish the right or means of redress. (Rule 320.1 RoP).
The requirement of “all due care” is in principle met if the party has taken all reasonable precautions to enable it to meet the deadline and the deadline was missed for a reason beyond the party's control , this includes knowledge of the legal system and the relevant decisions.
A represented party must assume responsibility for any fault on the part of their UPC representative. Inadequate knowledge of the law is generally not sufficient grounds for re-establishment of rights.
However, the Claimant – exceptionally – cannot be accused of misjudging the legal situation in the specific circumstances of the case at hand, despite being represented by a lawyer.
Dissenting opinion of Judge Brinkman disagreeing with the narrow interpretation of the regulations. (Article. 36 of The Statute of The Unified Patent Court, Article 78 UPCA, Article 69 UPCA ) .
The application to be inadmissible due to a lack of legal interest – application should be admitted in the cost proceedings, thus making re-establishment of rights unnecessary and devoid of legal interest.
It is clear from the Rules of Procedure and Article 69 UPCA that a “cost decision” means a decision on the reimbursement of costs.
However, in this case the Claimant is not requesting a cost decision, they are only requesting that their 40% portion be used as a deduction from the amount they have to pay to the Defendants
