Rule 313 – Application to intervene

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1. An Application to intervene may be lodged at any stage of the proceedings before the Court of First Instance or the Court of Appeal by any person establishing a legal interest in the result of an action submitted to the Court (hereinafter “the intervener”).

2. An Application to intervene shall be admissible only if it is made in support, in whole or in part, of a claim, order or remedy sought by one of the parties and is made before the closure of the written procedure unless the Court of First Instance or Court of Appeal orders otherwise.

3. The intervener shall be represented in accordance with Article 48 of the Agreement.

4. The Application to intervene shall contain:

(a) a reference to the action number of the file;

(b) the names of the intervener and of the intervener’s representative, as well as postal and electronic addresses for service and the names of the persons authorised to accept service;

(c) the claim, order or remedy in support of which intervention is sought by the intervener; and

(d) a statement of the facts establishing the right to intervene under paragraphs 1 and 2.

 

Case Law

 

Court of Appeal

 

IPPT20250108, UPC CoA, Daedalus v Xiaomi
Intervention by Mediatek in appeal proceedings between Daedalus and Xiaomi allowed (R. 313 RoP, R, 314 RoP). MediaTek has a direct and present interest in the result of the appeal proceedings, as the confidential information at issue in the appeal proceedings concerns information relating to the architecture of MediaTek’s processors. Daedalus’ submission that its US attorneys already have access to the confidential information in the context of parallel proceedings in the US does not alter the assessment. This submission may be relevant to the decision on the appeal but does not mean that there is no legal interest for MediaTek to intervene in the appeal proceedings. Application to intervene admissible, although not made before the closure of the written procedure (R. 313.2 RoP, R. 315 RoP). MediaTek declared that it does not intend to file a statement of intervention under R. 315.1 and R. 315.3 and wishes only to be allowed to participate in the oral hearing to support Xiaomi in their request to dismiss the appeal. Allowing the intervention will therefore not result in any delay of the appeal proceedings.  

 

IPPT20240110, UPC CoA, Ocado v Autostore 

Application to intervene in appeal refused. Interest in the result of the action (Rule 313(1) RoP) means a direct and present interest in the grant by the Court of the order or decision as sought by the party, whom the prospective intervener whishes to support and not an interest in relation to the pleas in law put forward. It is necessary to distinguish between prospective interveners establishing a direct interest in the ruling on the specific request sought by the supported party, and those who can establish only an indirect interest in the result of the case by reason of similarities between their situation and that of one of the parties. A similiarity between two cases is not sufficient.

 

Court of First Instance

 

IPPT20241223, UPC CFI, CD Milan, Insulet v Menarini
Cost decision to pay € 1,764 for legal costs regarding unsuccessful intervention. Application to intervene opens sub-proceedings (R. 313 RoP). Successful party in intervention sub-proceedings entitled to ask for legal costs  compensation (R. 151 RoP, Article 69 UPCA) in accordance with the general principle that the successful party is entitled to recover from the unsuccessful party the costs incurred in the proceedings. 

 

IPPT20241002, UPC CFI, LD Munich, NEC V TCL
Patent pool administrator admitted as intervener: has a direct and present legal interest in the outcome of the proceedings (R. 313 RoP). As pool administrator, Applicant is entitled to conduct license negotiations with implementers of the HEVC standard, to enter into license agreements for the patents included in the pool, to collect royalties, and to distribute the royalty income to the pool members. Intervention not precluded by the fact that it does not prevent a violation of Article 101 TFEU because the Applicant and the Claimant have the possibility to exchange sensitive information under competition law in their written submissions. The parties have the same opportunities to exchange information outside the proceedings and the intervention anyway. By admitting the intervention, the Applicant is a participant to the proceedings and is to be treated as a party in accordance with Rule 315 (4) RoP. As it must accept the proceedings at this stage, it must be allowed to inspect the files in order to conduct the proceedings appropriately. However, the Court has already classified certain parts of the FRAND Counterclaim of the Defendant 1) and of the Statement of defences briefs of the Defendant 1) – 6) and exhibits as confidential (R. 262A RoP) The Applicant can therefore not be granted unrestricted access to this information. 

 

IPPT20241001, UPC CFI, CD Milan, Eoflow v Insulet
Request for intervention admissible but rejected (R. 313 RoP). Due to lack of capacity on the part of CMS, the procedure for intervention can only be initiated in hard copy. Third party having a mere de facto interest in one of the parties being victorious to bolster a parallel case has no legitimacy to intervene.

 

IPPT20240730, UPC CFI, LD Vienna, Swarco v Strabag
Intervention admissible on the condition that the intervener deposits a security for costs in the amount of EUR 134.000 with the UPC by 20 August 2024 ((Rule 314 RoP). While Article 69(4) UPCA only provides for the provision of a security for costs by the plaintiff, Rule 158 RoP extends the circle of addressees of such an order to "the parties" and thus also to the intervener if it is admitted. Legal interest in the result of the action requires a direct and present interest in the issuance of the order or decision requested by the supported party, which in any case can be affirmed if it is alleged that the product purchased from the intervener infringes the patent in suit (Rule 313(1) RoP).

 

IPPT20240626, UPC CFI, LD Düsseldorf, Dolby v HP
Intervention by manager of patent pool to which the plaintiff has contributed its HEVC-essential patent portfolio, including the patent in suit, allowed (Rule 313 RoP). The intervener has a sufficient legal interest in the outcome of the legal dispute. […] the intervener also fulfils the plaintiff's FRAND obligations and has been in talks with the defendant's group for some time about the conclusion of a pool licence.

 

IPPT20240506, UPC CFI, LD Paris, Photon Wave v Seoul Viosys
An intervening party may not develop claims contrary to those of the party it is supporting (Rule 313 RoP, Rule 9 RoP) and may not independently develop claims and procedural methods distinct from those offered to the party it is supporting. 

 

IPPT20240422, UPC CFI, LD Düsseldorf, Seoul Viosys v epert e-Commerce
Intervention by licensee allowed (Rule 313 RoP).Intervening licensee has a direct and present interest in the outcome of the revocation counterclaim as well as the joint infringement action because any change in the interpretation and determination of the scope of protection can directly influence not only the answer to the infringement question, but also the assessment of the validity of the patent in dispute.

 

IPPT20240110, UPC CoA, Ocado v Autostore 

Application to intervene in appeal refused. Interest in the result of the action (Rule 313(1) RoP) means a direct and present interest in the grant by the Court of the order or decision as sought by the party, whom the prospective intervener whishes to support and not an interest in relation to the pleas in law put forward. It is necessary to distinguish between prospective interveners establishing a direct interest in the ruling on the specific request sought by the supported party, and those who can establish only an indirect interest in the result of the case by reason of similarities between their situation and that of one of the parties. A similiarity between two cases is not sufficient.