UPC CoA, 16 March 2026: Limited review in appeal of decision to deal with Preliminary Objection regarding FRAND issue in the main proceedings
14-05-2026 Print this page
The Court of First Instance has case management discretion to either decide on the Preliminary objection as soon as practicable or decide to deal with the Preliminary objection in the main proceedings (R. 19 RoP, R. 20 RoP, R. 102.1 RoP, R. 331.1 RoP). The decision to deal with the Preliminary objection in the main proceedings may be taken either by the judge-rapporteur, as laid down in R. 20.2 RoP, or by the panel if the judge-rapporteur has decided to refer the matter to the panel to decide. R. 102.1 RoP on the interim procedure shall apply applies mutatis mutandis to the written procedure where the judge-rapporteur, after his assignment to the case by the presiding judge pursuant to R. 18 RoP, is likewise tasked with the management of the case, including case management decisions or orders relating to a Preliminary objection. Limited review in appeal (Article 73 UPCA) Considering that the CFI has a margin of discretion […] the review by the Court of Appeal is limited. If, within this limited scope of review, it is established that the CFI erred in using its discretion, for example by misusing or exceeding its discretion, the order must be set aside. The LD Paris has not misused or exceeded its margin of discretion in deciding to defer the decision on the admissibility of claim A.II (FRAND) of the SoC to the main proceedings. There are sound reasons of case management efficiency for the admissibility of claim A.II to be dealt with in the main proceedings. Follows from Statement of claim that the claimed determination of a FRAND offer is only incidental or dependant on infringement.
