Rule 353 – Rectification of decisions and orders

The Court may, by way of order, of its own motion or on application by a party made within one month of service of the decision or order to be rectified, after hearing the parties, rectify clerical mistakes, errors in calculation and obvious slips in the decision or order.

Case law

Court of Appeal

IPPT20240927, UPC CoA, Volkswagen v NST
Information meant in R. 158.4 RoP – that if the party fails to provide adequate security within the time stated, a decision by default may be given in accordance with Rule 355 – does not necessarily have to be given in the Order to provide security for costs. In its Statement of appeal and grounds of appeal, Volkswagen had not requested that this information be included in the Order itself either. The Court thus does not see the necessity for rectification of the Order (R. 353 RoP). It therefore suffices that the information as meant in R.158.4 RoP is provided to NST by this separate order.

Court of First Instance

IPPT20241120, UPC CFI, LD Düsseldorf, Valeo Electrification v Magna
No rectification of order (R. 353 RoP). Correct list of BMW models: no error or obvious slip: the model “2 Series Gran Coupé” was not introduced into the proceedings by the Defendants before their application for rectification of 6 November 2024. No slip of vindication action in France: omissions are not “clerical mistakes, errors in calculations and obvious slips”.  The statement in the Order is “With regard to the French part of the patent in suit, Defendant 1) filed a vindication action before the Paris Court of First Instance on 22 August 2024 (see Exhibits HRM 21a-1 – 21a-71).” Substituting a party’s understanding for the Court’s assessment: not an obvious slip. The Defendants substitute their understanding of the wording of the Nomination Letter referred to for the Court's assessment that it does not impose an obligation. This is not a valid argument for rectifying the Order. Written submissions outside any time limit set by the Court disregarded: submitted without having been given the opportunity to be heard by the Court, were not be taken into account (R. 9.2 RoP)

IPPT20230630, UPC CFI, LD Düsseldorf, myStromer v Revolt Zycling

Unsuccessful application for rectification under Rule 353 of order so as to include Austria in the  countries covered by provisional injunction. Application admissible under Rule 353. Obiter dictum: Since Rule 353 only allows for purely formal corrections without an examination of the substance of the matter, it is not necessary for the panel to decide in the same composition as when the order was issued. No obvious inaccuracy. Obvious inaccuracies includes all incorrect or incomplete statements of what the court actually intended in the order or decision. The declaration of the judicial intention in the decision or order must deviate from the intention present when the decision was made. Order for provision measures was issued on the basis of the application where in the auxiliary request Austria was not explicitly mentioned. The fact that the more general main request, seeks the grant of an interim injunction in respect of all member states of the Unified Patent Court in which the patent for invalidity is in force does not give rise to a different assessment, as the applicant only deals with Germany, the Netherlands, France and Italy in connection with the justification of an act of infringement. Conflict with the territorial scope provided in article 34 UPC Agreement does not justify a rectification under Rule 353.