Rule 220 – Appealable decisions

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1. An appeal by a party adversely affected may be brought against: 

(a) final decisions of the Court of First Instance; 

(b) decisions terminating proceedings as regards one of the parties; 

(c) orders referred to in Articles 49(5), 59, 60, 61, 62 or 67 of the Agreement.

2. Orders other than those referred to in paragraph 1 and Rule 97.5, may be either the subject of an appeal together with the appeal against the decision or may be appealed with the leave of the Court of First Instance within 15 days of service of the Court’s decision to that effect.

3. In the event of a refusal of the Court of First Instance to grant leave within 15 days of the order of one of its panels a request for a discretionary review to the Court of Appeal may be made within 15 calendar days from the end of that period. Rule 333.3 shall apply mutatis mutandis. The request shall set out the matters referred to in Rule 221.2.

4. The Registrar shall assign the request for a discretionary review to the standing judge (Rule 345.5 and .8). The standing judge may deny the request without giving reasons. If the standing judge allows the request after having heard the other party, he shall order what further steps, if any, the parties shall take and within what time limits and the President of the Court of Appeal shall assign the review to a panel of the Court of Appeal for a decision. The Court of Appeal may consult the presiding judge or the judgerapporteur of the panel of the Court of First Instance which has refused the leave order.

5. The Court of Appeal may hear appeals against separate decisions on the merits in infringement proceedings and in validity proceedings together.

Relation with Agreement: Article 73

 

Case Law

 

Court of Appeal

 

IPPT20240111, UPC CoA, Netgear v Huawei

Request for discretionary review and appeal allowed of decision of the judge-rapporteur not to allow review of order by the panel that a preliminary objection is to be dealt within the main proceedings (Rule 220(3) RoP). As a general principle, unless provided otherwise, a case management decision or order made by the judge-rapporteur or the presiding judge can only be appealed if such decision or order has first been reviewed by the panel pursuant to Rule 333.1. Request for a discretionary review allowed of decision of judge-rapporteur on the admissibility of the application to have his decision reviewed by the panel pursuant to Rule 333.1 RoP, rather than have the panel decide on the admissibility of the application. Denying the request only justified if the underlying reasoning of the judge-rapporteur would be accurate. Under these circumstances, the standing judge considers it justified to allow the request for discretionary review to the extent that the applicant is allowed to appeal the decision of 11 December 2023.

 

First Instance

 

IPPT20240125, UPC CFI, LD Hamburg, Fives v Reel
A decision by the judge-rapporteur granting a preliminary objection that the UPC lacks competence cannot be reviewed by the full panel on the basis of Rule 333 RoP, but may be appealed to the Court of Appeal as a final decision of the Court of First Instance (Rule 21.1 RoP, Rule 220(1)(a) RoP
 

IPPT20240124, UPC CFI, LD Paris, Abbott v Dexcom
Requested leave to appeal confidentiality order by judge-rapporteur not admissible, until that  order has first been reviewed by the panel in the pending review procedure (Rule 220(2) RoP, Rule 333(1) RoP). (See also: IPPT20240111, UPC CoA, Netgear v Huawei)  

 

IPPT20240118, UPC CFI, LD Munich, Netgear v Huawei
Leave to amend the action to include claims of additional patent after the conclusion of limitation proceedings related thereto as granted by judge-rapporteur confirmed by the panel (Rule 263 RoP, Article 105a EPC). Rule 263 RoP leave to change claim or amend case is a procedural order to be made by the judge-rapporteur and subject to review by the panel (Rule 333 RoP and subsequent appeal (Rule 220 RoP). This procedure is intended to give the ruling body the opportunity to remedy the objection itself and thus avoid a superfluous appeal.. 

 

IPPT20231113, UPC CFI, CD Paris, Meril Italy v Edwards Lifesciences

Preliminary objection concerning the competence of the Central Division because of a pending action before the Munich Local Division rejected: Meril Italia is not the same party a Meril India or Meril Germany (article 33(4)UPCARule 20 RoP). No leave for appeal granted, because the Respondent has no actual and concrete interest in it (Rule 220 RoP). This decision is not capable of causing any harm to the Respondent, since a prejudice to its positon may arise only by the decision that allows the Preliminary objection.