Rule 220 – Appealable decisions

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

IPPT20240411, UPC CoA, Neo Wireless v Toyota
Time period for lodging appeal against procedural order’ (Rule 220(2) RoP, Rule 224(1)(a) RoP)
If an appeal is lodged against a ‘procedural order’ under Rule 220(2) RoP and leave (i) is granted in the impugned order itself, the Statement of appeal must be lodged within 15 days of service of that order containing the decision to grant leave. If the decision to grant leave to appeal (ii) is contained in a separate order on a request to that effect (which separate order must be issued within 15 days of the impugned order, cf R.220(3) RoP), the Statement of appeal has to be lodged within 15 days from the date of service of this separate order containing the decision to grant leave to appeal.

IPPT20240403, UPC CoA, Juul Labs v NJOY Netherlands

Appeal and the appellant’s request to set aside the orders of the Court of First Instance to rectify the name of the defendant (“Juul Labs, Inc”) to read “Juul Labs International, Inc.” rejected [Rule 9 RoP]. Direct appeal of order of judge-rapporteur admissible as explicitly provided for in Rule 21(1) RoP, no prior review by the panel required in this particular case. 

IPPT20240321, UPC CoA, Netgear v Huawei
Determination of the judge-rapporteur to deal with the Preliminary objection in the main proceedings is a case management decision that must be reviewed by the panel at the request of the defendant (Rule 333(1) 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 R.333.1 RoP. Judge-rapporteur not authorized to decide on application for review under Rule 333(1) RoP. Rule 333(4) RoP explicitly provides that the panel shall decide the Application for review. As can be inferred from Article 52(2) UPCA, case management during the written procedure and the interim procedure is mandated by the panel to the judge-rapporteur. In accordance therewith, Rule 331(1) RoP provides that case management is the responsibility of the judge-rapporteur subject to Rule 102 and Rule 333 RoP. If a Preliminary objection is rejected, as an exception to the general principle, leave to appeal may be given by the judge-rapporteur without prior panel review under Rule 333(1) RoP being required (Rule 21(1) RoP). If leave is granted, the unsuccessful party thus has the choice to either file an appeal or an application for review under R.333.1 RoP. If the judge-rapporteur did not grant leave to appeal, a party may apply for a panel review. The resulting panel decision may then subsequently be appealed if leave has been granted by the panel under R.220.2 RoP, or it may be subject to discretionary review under R.220.3 RoP. An Application under Rule 333(1) RoP in the event of a Rule 20(2) RoP notification is not inadmissible due to a lack of a justified interest. 

IPPT20240314, UPC CoA, Abbott v Dexcom
Inadmissible appeal (Rule 220(2) RoP). Under Rule 220.2 RoP an appeal from an order without leave is inadmissible from the outset and, as such, cannot be withdrawn. 

IPPT20240226, UPC CoA, AIM Sport v Supponor
Parties requested to comment on non-compliance with Rule 224.1(b) RoP, providing that a Statement of Appeal of an order has to be filed within 15 days of service of an order referred to in Rule 220.1(c) RoP. Under “Information about Appeal” the CFI has indicated that the decision could be appealed within two months of the date of notification of the decision, referring to Article 73(1) UPCA and Rule 220.1(a) and Rule 224.1(a) RoP concerning an appeal against a decision, such as a decision in an infringement action, while in one of the two actions AIM sought a preliminary injunction order pursuant to Article 62 UPCA.

IPPT20240215, UPC CoA, Meril v Edwards Lifesciences
Court fee of € 11.000 is payable for appeal under Rule 220(1)(a) RoP against an order determining which party is to bear the costs of the proceedings in the context of the dismissal of an application for interim measures under Rule 360 RoP. (Rule 228 RoP). In the absence of a specific fee, the fee is to be paid for the case that is most comparable to the present case according to the system of the table of fees. The Table of Fees determines the fee for an appeal under Rule 220.1(a) RoP based on the nature of the action or application decided by the Court of First Instance. Under this system, the provision providing for a fee of €11,000 for an appeal under Rule 220.1(c) RoP concerning a request for provisional measures under Article 62 UPCA applies mutatis mutandis to the present appeal proceedings. This is because these appeal proceedings also concern an appeal against an order terminating proceedings relating to a request for provisional measures under Article 62 UPCA. 

IPPT20240118, UPC CoA, Meril v Edwards Lifesciences
Application to order suspensive effect to appeal of order to bear the (to be assessed) costs of the proceedings up to a maximum of € 200.000 dismissed (article 74 UPCA, Rule 223 (1) RoP). Admissible application: A decision under Rule 360 RoP by which the court has dismissed an action because there is no need to adjudicate on the merits and includes the decision on the costs of the proceedings is to be be regarded as a final decision within the meaning of Rule 220.1(a) RoP and not as a decision within the meaning of Rule 223.5 RoP. Application unfounded: Interest of the plaintiff regarding further costs for cost assessment procedure does not generally outweigh the interest of the successful party within the meaning of Rule 151 RoP in a quick decision on the costs of the proceedings. Suspensive effect also not justified because if there are errors in the appealed order, they are in any case not errors that led to a manifestly erroneous order.

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.

Court of First Instance

IPPT20240227, UPC CFI, CD Paris, Meril Italy v Edwards Lifesciences
Leave to appeal rejected (Article 73 UPCA, Rule 220 RoP). In the absence of any precedents from the UPC on the disputed issue, there is no concrete need for a ruling on the meaning of the relevant rules; In case of a possible immediate appeal to this order a decision by the Court of appeal may intervene after that the oral hearing in the current proceedings has taken place and, therefore, would be of no practical use to the parties.

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)UPCA, Rule 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.