Rule 247 – Fundamental procedural defects

A fundamental procedural defect under Article 81(1) of the Agreement may have occurred, for example, where:

(a) a judge of the Court took part in the decision in breach of Article 17 of the Agreement or Article 7 of the Statute;

(b) a person not appointed as a judge of the Court sat on the panel which took the final decision;

(c) a fundamental violation of Article 76 of the Agreement occurred in the proceedings which have led to the final decision;

(d) the decision was made without deciding on a request relevant to that decision; or

(e) a breach of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms has occurred.

Case Law

IPPT20240806, UPC CoA, 10x Genomics v Nanostring
Application for rehearing inadmissible; no fundamental procedural defects (Article 81 UPCA, Rule 247(e) RoP). Grounds for the decision not based on personal opinion of one or more of the judges but on evidence, including the patent specification, supporting Nanostring’s arguments. With the words "in the judgement of the technically competent court" only expressed that it was particularly equipped and qualified to assess the arguments and evidence presented in a technically complex matter. The assessment of the arguments and evidence presented by the parties is made by the appellate court hearing the case and is not subject to review on a motion for rehearing. Court of Appeal not precluded from cost decision in  appeal decision that concludes actions for provisional and protective measures (Rule 118(5) RoP, Rule 242(1) RoP, Article 62 UPCA).