Rule 333 – Review of case management orders

1. Case management decisions or orders made by the judge-rapporteur or the presiding judge shall be reviewed by the panel, on a reasoned Application by a party.

2. An Application for the review of a case management order shall be lodged within 15 days of service of the order. The Application shall set out the grounds for review and the evidence, if any, in support of the grounds. The other party shall be given an opportunity to be heard.

3. The party seeking a review shall pay the fee for the review of a case management order, in accordance with Part 6. Rule 15.2 shall apply mutatis mutandis.

4. The panel shall as soon as practicable decide the Application for review and make any necessary revised case management order.

5. A decision of the panel on an Application for review is a procedural decision for the purposes of Rule 220.2.

Case Law

Court of Appeal

IPPT20241127, UPC CoA, Total Semiconductors v Texas Instruments
Discretionary review of an order of judge-rapporteur on security for costs and denying leave to appeal granted because of an access to justice issue which has not yet been decided and which the Court of Appeal can raise of its own motion (R. 220.3 RoP, Article 69(4) UPCA, R. 158 RoP, R. 333 RoP)

IPPT20240930, UPC CoA, Xiaomi v Panasonic
No discretionary review (R. 220.3 RoP) of refusal by Court of First Instance to grant leave to appeal of partial rejection of request for an extension of two months’ time limit (R. 29(d) RoP) by judge-rapporteur and panel (R. 333 RoP). The period by which a court extends a time limit in a particular case is at the court's discretion.

IPPT20240821, UPC CoA, Microsoft v Suinno
Inadmissible request for discretionary review by the Court of Appeal of an order rejecting – without leave to appeal – the ‘R.361 RoP request’ to declare the revocation action manifestly inadmissible (Rule 361 RoP). Leave to appeal as provided for in Rule 220.2 RoP required because the provision of Rule 363(2) RoP that a “decision  […] pursuant to Rules […] 361 […] is a final decision within the meaning of Rule 220.1(a)” (for which leave to appeal is not required) only concerns orders granting a ´R.361 RoP request´. An order denying a R.361 RoP request is a case management order as meant in R.333.1 RoP that cannot be directly appealed but can only be reviewed by the panel.

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. 

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

PPT20241202, UPC CFI, LD Munich, Heraeus v Vibrantz
Panel review: Change of claim to include Romania allowed (R. 263 RoP, R. 333 RoP).Change of claim to include Romania allowed (R. 263 RoP). The two extensions of the action shall be allowed because both parties have requested that the question of infringement and validity concerning Romania also be heard and decided. Amendment of claim to include process claim allowed: does not constitute a change of claim within the meaning of Rule 263 RoP. This is because, following the example of the Court of Appeal, no other patent is being asserted. The infringement allegation regarding the same product is merely supported by an additional patent claim. Accordingly, only Rule 13 in conjunction with point 7 of the preamble and Rule 9.2 Rules of Procedure are to be examined.

IPPT20240916, UPC CFI, CD Paris, Microsoft v Suinno - II
Not considered independent for purpose of a valid representation (Article 48(5) UPCA, R. 333 RoP.) It is undebated that […] is the respondent’s managing director and main shareholder and that because of that he enjoys extensive administrative and financial powers within the body he represents.

IPPT20240906, UPC CFI, LD Düsseldorf, Sodastream v Aarke
Request for panel review of dismissal of security for costs by judge-rapporteur dismissed (R. 333.1 RoP, R. 158 RoP)The judge-rapporteur correctly held that, under these principles, neither a financial risk nor a likelihood of unenforceability is presented to the Court. The Claimant, as part of the PepsiCo group, is financially able to comply with a decision on costs. This has not, in any event not sufficiently, been contested by the Defendant. In fact, the Defendant confirms in its Application (par. 6 “no insolvency risk is at hand”.) The fact that the Pepsico group is not a party to these proceedings (par. 29-30 Application) does not mean that the Claimant is unable to comply with a possible decision on costs. 

IPPT20240909, UPC CFI, LD Mannheim, Panasonic v Xiaomi
Panel confirms case management orders judge-rapporteur (R. 333 RoP, R. 262A RoP, R. 29(d) RoP). Panel exercises its authority to order and extension of the time limit for lodging Reply to the Defence to the Counterclaim together with any Rejoinder to the Reply to the Statement of defence because of redacted versions of Defence in the Counterclaim (Part II – non-technical part) in the same way as the judge-rapporteur: two week extension from 14 August 2024 until 28 August 2024. The defendants in all three parallel proceedings have, when looked at in the light of the circumstances, almost seven weeks to prepare the replies to the reply to ‘Part II - non-technical part’ alone. This is more than the one-month period that would have been available without a nullity counterclaim for the statement in response to the infringement action with regard to the infringement action and the FRAND objection. No leave to appeal granted (R. 220.2 RoP). In issuing this order, the panel is not deviating from the cited orders of the Court of Appeal and the Düsseldorf Local Division.

IPPT20240805, UPC CFI, LD Düsseldorf, Ortovox v Mammut
Security (deposit) to be released when the period for requesting panel review has expired (Rule 333 RoP, Rule 352(2) RoP, Rule 45 Registry Rules). Double security – a deposit and a bank guarantee – can also be the reason and cause for a release decision.

IPPT20240722, UPC CFI, LD Mannheim, AYLO v DISH
Application for panel review of Rule 262A RoP case management order admissible but unsuccessful on the merits (Rule 333 RoP). The three persons named by the applicants were rightly not excluded in the order of 3 July 2024 from access to the information to be classified as confidential on the functioning of the contested embodiments.

IPPT20230719, UPC CFI, LD Brussels, OrthoApnea
Panel review of case management order judge-rapporteur (Rule 333 RoP) is of a marginal nature in the sense that it is limited to ascertaining whether the Judge-Rapporteur relied on the correct facts, whether he assessed them correctly and whether he made his decision within the bounds of reasonableness. Leave to appeal granted (Rule 220.2 RoP)

IPPT20230708, UPC CFI, LD Brussels, OrthoApnea
Case management order. Leave to appeal dismissed for lack of appealable subject-matter (Rule 333(1) RoP). [case management order is to be reviewed by the panel] UPC_CoA_486/2023 APL_595643/2023 Decision (Order) of the UPC Court of Appeal issued on 21 March 2024, [IPPT20240321]. Amendment of case in Statement of Reply in response to the Statement of Defence with new facts, infringement arguments (equivalence) and claim permitted (Rule 263 RoP, Rule 13 RoP): consistent with the normative purpose of R. 13 RoP and, fitting into the procedurally-evolutive course of a judicial dispute. Deadline extension for Rejoinder to Statement of Reply with 2 weeks proportionate, reasonable and equitable (Rule 9(3)(a) RoP, Rule 29)(c) RoP). Extended period does not affect Claimant's rights, nor does it affect the further procedural calendar already determined in this case (specifically, the dates of the interim conference and pleading date). 

IPPT20240130, UPC CFI, LD Paris, Abbott v Dexcom
Review of case management confidentiality order by judge-rapporteur (Rule 333 RoP) concerning discrepancy in the fines (€ 50.000 v € 250.000) set by the Local Division Paris and the Local Division Munich for breach of confidentiality orders (Rule 262 RoP, Rule 262A RoP) in parallel proceedings between the same parties concerning the same protected confidential information regarding two different patents. No justified need to harmonise the amount of the fine because one division is not bound by a decision in another division despite belonging to the same unified court. The Judge-Rapporteur was justified in considering that part of the confidential information had already been disclosed without a confidentiality restriction and that a lower amount of the fine would sufficiently protect the legitimate interests of the parties in the event of a breach. Therefore, a maximum fine amount of EUR 50,000 in case of breach is appropriate and proportionate in the contested confidentiality order and there is no need to set a higher maximum amount for the fine. No need for amendment of the order to avoid the potential risk of a double fine: it will be at the Court’s discretion, at the time of any breach, to decide on the appropriate amount of a fine to be paid, taking into account all elements in concreto, including any previous fine decided by the UPC Munich Local Division for the same breach. There is no grounds to bind the Paris Local Division, in case of breach and as requested by Dexcom, in cases where the Munich Local Division has already imposed a fine. 

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) 
Rule 333.1 RoP does not apply directly. This is because Rule 333.1 of the Rules of Procedure only applies to "procedural decisions or orders". The decision whose review the applicant seeks is not procedural. It follows from the term "procedural" that the decision may not be a final decision and thus not "terminating the proceedings". Nor does an analogous application of Rule 333.1 RoP apply in the present case. There is neither an unintended loophole nor a comparable situation of interest. Nor does the legislative history of the RoP indicate otherwise. In this respect, the plaintiff refers to comments made by the persons involved in the preparation of the RoP. From these remarks, the plaintiff deduces that they were of the opinion that Rule 333.1 of the Rules of Procedure applies directly to a decision granting the objection. However, this cannot be inferred from the comments referred to by the plaintiff. The comments are very brief and do not make clear the specific context in which they stand. The decision of the Helsinki Local Chamber of 28 August 2023 - UPC_CFI_214/2023 - does not contradict this understanding.

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). The request is unfounded. Assessment of the admissibility of the extension of the action is based solely on Rule 263 RoP and not on national law. The plaintiff could not reasonably be expected to assert the limited claims earlier before the conclusion of the limitation proceedings, also due to the risk of a further counterclaim for a declaration of invalidity of the second patent. In the context of the present proceedings or in the context of separate proceedings, the defendants must be granted the same time limits for their defence that would have been granted if they had filed a separate action, but no longer. 

IPPT20231211, UPC CFI, LD Munich, Huawei v Netgear

Notification by the judge-rapporteur (Rule 20(2) RoP)  that a Preliminary objection is to be dealt with in the main proceedings is not subject to review by the panel (Rule 333(1)) RoP). The judge-rapporteur decides on this inadmissible application because of the objective of procedural economy, in particular the conservation of the time resources of the other members of the panel.