Rule 355 – Decision by default (Court of First Instance)

1. Upon request a decision by default may be given against a party where:
(a) the Rules of Procedure so provide if a party fails to take a step within the time limit foreseen in these Rules or set by the Court; or

(b) without prejudice to Rules 116 and 117, the party which was duly summoned fails to appear at an oral hearing.

2. A decision by default against the defendant of the claim or counterclaim may only be given where the facts put forward by the claimant justify the remedy sought and the procedural conduct of the defendant does not preclude to give such decision.

3. A decision by default against the defendant of the claim or counterclaim may only be given where the time limits for the defence to the claim or counterclaim have expired and thus, it is established that the service of the claim or counterclaim was effected in sufficient time to enable the defendant to enter a defence.

4. A decision by default shall be enforceable. The Court may, however:

(a) grant a stay of enforcement until it has given its decision on any Application under Rule 356; or

(b) make enforcement subject to the provision of security; this security shall be released if no Application is made or if the Application fails.

See also: Article 37 UPC Statute

Case Law:

Court of Appeal

IPPT20250712, UPC CoA, Microsoft v Suinno
Impugned order revoked and decision by default dismissing the infringement action given against Suinno for failure to provide security for costs (R. 355.2 RoP, R. 158.5 RoP). Decision by default of R. 355.2 RoP only applies when a decision by default is sought "against the defendant of the claim". It does not apply when a decision by default is requested by the defendant against the claimant because the claimant failed to take a step within the time limit foreseen in the RoP or set by the Court or it failed to appear at an oral hearing pursuant to R. 355.1(a) and (b) RoP. The rationale underlying R. 355.2 RoP is that a decision by default against the defendant by which the Court orders the remedy sought by the claimant or the counter-claimant does not only require that the Court finds that the conditions mentioned in R. 355.1 (a) or (b) RoP are met but also finds that the conditions, that the order of the remedy sought presupposes, are met based on the facts that are put forward by the claimant which justify the claims, providing the procedural conduct of the defendant does not preclude to give such decision. The effectiveness of security for costs ordered under R. 158 RoP is ensured by the power granted to the Court under RoP 158.5 RoP to give a decision by default if the party bound to provide a security for costs fails to do so. It is only under exceptional circumstances that the Court may derogate from this general rule and the reference to the status quo of the action may not justify such a derogation.

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.

IPPT20240226, UPC CoA, Nanostring v 10x Genomics II

A distinction must be made between the formal requirements of Rule 206(2)(a) RoP (checked by the Registry) and the substantive requirements of Rule 206(2)(b) to (e) RoP (checked by the court). Formal requirements shall be examined by the Registry as soon as possible (Rule 208(1) RoP, Rule 16(2) RoP). If deficiencies are not corrected within 14 days a decision by default may be issued (Rule 16(5) RoP, Rule 355(1)(a) RoP).

Court of First instance

IPPT20260204, UPC CFI, LD Paris, Keeex v Adobe
No default judgment justified as a sanction for lack of diligence in providing a bank guarantee of € 200.000 within the ordered time limit of 16 January 2026 (R. 158.5 RoP, R. 355 RoP). It should be noted that R. 158.5 RoP provides that the reporting judge ‘may’ issue a default judgment, which leaves the judge with discretion in accordance with the principles of procedural efficiency as well as the principles of fairness and proportionality. KEEEX provided, within the time limit set by the order (i.e. 16 January 2026) proof that the sum of €200,000 was frozen in its account for this purpose and, in view of the reporting judge’s response dated 16 January 2026 at the end of the day, provided the documents corresponding to the required bank guarantee as early as the following 26 January.
 

IPPT20260112, UPC CFI, CD Paris, WhiteWater v American Wave
Decision by default (Rule 355 RoP). Patent partially revoked (Article 65 UPCA). Claim 1 lacks inventive step (Article 56 EPC).

IPPT20251219, UPC CFI, LD Düsseldorf, HP v Shenzen Moan
Preliminary injuction granted. (Article 62(2) UPCA, Rule 211 RoP, Rule 209 RoP). A decision by default is not considered. Regular PI order is applicable. (Rule 355.1(a) RoP, Rule 209(1) RoP). If the defendant does not lodge an objection within the time period set by the Court, the application for provisional measures can be decided based on the applicant’s submissions by means of a regular order in the PI proceedings. It is more likely than not that Patents A and B are infringed (Rule 211.2 RoP). by the offer and distribution of the challenged embodiments by Defendant 1.

IPPT20251128, UPC CFI, LD Düsseldorf, Hewlett-Packard v Zhuhai ouguan Electronic
Preliminary injuction granted. (Article 62(2) UPCA, Rule 211 RoP, Rule 209 RoP). A decision by default is not considered. Regular PI order is applicable. (Rule 355.1(a) RoP, Rule 209(1) RoP). If the defendant does not lodge an objection within the time period set by the Court, the application for provisional measures can be decided based on the applicant’s submissions by means of a regular order in the PI proceedings.

IPPT20251021, UPC CFI, LD The Hague, Amycell
Permanent injunction by default judgement in infringement action, following preliminary measures of 31 July 2024 and appeal of 28 November 2025. Patent valid and infringed. (Article 25 UPCA) Earlier preliminary measures upheld by order of a permanent injunction, with the addition that total penalty be maximised ; (Art. 63 UPCA , Article 34 UPCA).
Re – establishment of rights denied after failing to submit the Statement of Defense on time by a default decision in order dated April 1 2025.  (Rule 320 RoP, Rule 355 RoP).The applications filed by the Defendant after the Order was issued, are not admitted and the request to reverse the Order with these applications is dismissed. In the Order the termination of the Action with a decision by default was announced. The fact that some time passes between the issuing of the Order, does not change this. The default decision only confirms the injunction that is already in place pursuant to the PM Order; it does not change the factual and legal situation, apart from replacing a provisional by a permanent injunction. Decision by Default  (Rule 355 RoP).The Court understands a decision by default under R.355.2 RoP to mean that in a default situation, it must assess whether the facts are sufficiently substantiated by evidence and whether the requested measures and orders are not prima facie unlawful or unfounded. The grounds for the injunction and measures that Claimant seeks in the Action, are the same as those it relied on in the PM proceedings ; Patent is therefore valid and infringed. the SoC largely reflects the facts and legal arguments Claimant submitted in the PM proceedings. In the PM proceedings the Court (provisionally) considered that the patent is more likely that not to be valid and infringed. The Court has no reason to assume in these proceedings on the merits, also given that there is no relevant defence to be considered, otherwise. 

IPPT20251017, UPC CFI, LD Düsseldorf, HP v Rentmeister
Preliminary Injunction granted (Article 62 UPCA, Rule 211 RoP, Rule 209 RoP). The application for provisional measures can be decided on the applicant’s submissions by a regular order in the PI proceedings . If the defendant does not lodge an objection within the time period set by the Court or decides not to substantiate its objection for reasons outside of the court proceedings, A decision by default  is not to be considered. (Rule 355.1(a) RoP). It is up to the defendant to decide whether to accept the invitation and lodge an objection. If the defendant declines the invitation, there is no reason to grant him the advantages of a decision by default. 

IPPT20250904, UPC CFI, CD Milan, Gilead Sciences v AMMS
Inadmissible application for default judgement (R. 355.1(a) RoP). According to Rule 271.6, the statement of revocation is deemed to have been validly served to the defendant when the letter containing the statement of revocation and the unique access code was received by the patent representative. So, service was completed on 7 July 2025. The defendant, therefore, has until 8 September 2025 to file a statement of defense in the proceedings.

IPPT20250903, UPC CFI, LD Düsseldorf, HP v Zuhai and Rentmeister
Preliminary injunction and other provisional measures for direct patent infringement (Article 25 UPCA, R. 209 RoP). If a defendant, upon invitation, fails to lodge an objection to an application for provisional measures the case can be decided by means of a regular order (R. 206 RoP, R. 209.1(a) RoP, R. 355.1(a) RoP). In a situation like this, a decision by default (R. 355.1(a) RoP) is not something to be considered for several reasons. The fact that the Applicant has, in addition to its regular motions, also requested a decision by default does not prevent a regular order from being issued. Pursuant to Art. 76(1) UPCA, the Court shall decide in accordance with the requests submitted by the parties and shall not award more than is requested. The present order falls within this framework.

IPPT20250805, UPC CFI, LD Dusseldorf, igus v Whale Technology
Patent infringed (Article 25 UPCA); Default judgement issued against the defendant, upon failure to file a Statement of Defence. (Article 37 UPCS , Rule 355 RoP). It is irrelevant that the Rules of Procedure do not expressly provide for the issuance of a default judgment for this type of default, due to the explicit mention of the issuance of a default decision in the UPC Statute, which takes precedence over the Rules of Procedure. In the statement of claim, the plaintiff conclusively argues that the contested embodiment literally implements all features of claim 1 of the contested patent.

IPPT20250722, UPC CFI, CD Milan, Eoflow v Insulet
Decision by default cannot be issued against the defendant based solely on a procedural violation or failure to defend (R. 355 RoP). Before issuing a decision by default against a defendant based on a procedural violation or failure to defend, the Court must verify that the case file contains sufficient, precise and consistent evidence to enable the judgment to be issued.

IPPT20250710, UPC CFI, LD Düsseldorf, Aesculap v Shanghai International
Preliminary injunction, seizure and order to communicate information granted (Article 62 UPCA, Article 67 UPCA)). Absence of a party in summary proceedings from the oral hearing does not necessitate a default judgement (R. 210(3) RoP, R. 116 RoP, R. 355 RoP). Pursuant to R. 210(3) RoP, Rules 111 to 116 of the Rules of Procedure apply mutatis mutandis to summary proceedings. On this basis, the court is not obliged to postpone a procedural step, including a decision on the merits, solely because a party was not present at the oral hearing (R. 116(2) RoP). According to R. 116(3) RoP, a party not represented at the oral hearing shall be treated as if it were relying solely on its written submissions. Accordingly, the Local Chamber based its order on the respondent's submissions in the statement of opposition. 

IPPT20250708, UPC CFI, CD Milan, Maschio Gaspardo v Spiridonakis Bros
Direct and indirect patent infringement (Article 25 UPCA, Article 26 UPCA), decision by default (R. 355. RoP). Level of evidence required and burden of proof for an in absentia decision. Rule 355.2 has a broader scope than Rule 171.2 and deals with a general non-contestation of all facts phrased in the statement of claim. Rule 355.2 requires that non-contestation be accompanied by facts justifying the remedy to prevent the claimant from gaining an unfair advantage [...]. Whether it is a declaration of infringement or a patent revocation, a decision cannot be issued 'by default' merely by acknowledging the absence of a defence. Rule 355.2 must be interpreted in light of the burden of proof principle set out in Rules 171.1 and 172.1, [...]  In any case he claimant must put forward all elements in its possession to justify the legal requests. These elements constitute the de minimis requirements for a statement of claim to be considered complete and admissible. Rule 355.2, therefore, imposes de minimis factual allegations for a decision to be issued in absentia, namely those set out in Rules 12 and 13 RoP. It is not necessary to take a stand on patent invalidity, as the court does not raise the issue of patent validity ex officio, even in a decision by default. 

IPPT20250409, UPC CFI, LD Munich, Promosome v BioNTech
Agreement by parties to provide security for costs and by way of deposit (R.158 RoP). The request to give a decision by default pursuant to Rule 355 RoP in the event the Claimant fails to provide the ordered security within the time specified by the Court is rejected is currently unfounded and premature. 

IPPT20250402, UPC CFI, CD Paris, Suinno v Microsoft
Application for decision by default because of failure to provide the security for costs within the time limit specified by the Court rejected (R. 355 RoP). Court has the discretion but not the obligation, to issue a decisions by default, when a step is not taken within stated time limit. The Court may consider relevant that the evidentiary findings acquired in the proceedings at the time of the default does not allow for a sufficiently confident assessment of the merits of the claims put forward by the non-defaulting party.

IPPT20250109, UPC CFI, LD Munich, air up v Guangzhou Aiyun
Provisional measures ordered -  decision by default (R. 211 RoP, R. 355 RoP, Article 37 Statute). The application was served to the defendant in accordance with Rule 275.2 RoP (App_64018/2024). Within the letter of service, defendant was informed that a decision by default may be issued, if within the time limit foreseen by the Court defendant fails to take a step. Defendant did not respond. 

IPPT20241011, UPC CFI, LD Munich, i-mop v Arcora
Default judgment, including injunction and provisional damages (Article 37 UPC Statute, R. 355 RoP). Express provision in Article 37(1) of the UPC Statute that failing to file written submissions in defence after having been served with a document  instituting proceedings is sufficient. Not necessary that this express provision is also present in the Rules of Procedure. The UPC Statute takes precedence over the Rules of Procedure.

IPPT20240916, UPC CFI, CD Paris, BMW v ITCiCo Spain
Decision by default in revocation action (Article 65 UPCA, R. 355 RoP). It is the discretion of the court to issue a decision by default or not (R. 355 RoP), provided i) the relevant request is submitted by the claimant; ii) the defendant fails to take a step within the time limit foreseen in the Rules of Procedure or set by the Court, or the party which was duly summoned fails to appear at an oral hearing, or the time limit for the defence to the claim has expired and thus, it is established that the service of the claim was effected in sufficient time to enable the defendant to enter a defence; and iii) the facts put forward by the claimant justify the remedy sought and the procedural conduct of the defendant does not preclude to give such decision. In carrying out its discretion assessment, the Court has to consider that expeditious decisions are one of the aims of the Unified Patent Court Agreement and that the legal framework of the ‘UPC’ provides the defendant with appropriate tools to provide justification for the default and to appeal the decision where unfavourable.
 

IPPT20240221, UPC CFI, LD Düsseldorf, Fujifilm v Kodak
Claimants’ requests for a decision by default against the defendants in the main proceedings pursuant to Rule 355 (1)(a), 277 RoP and for a rejection of the Counterclaims for revocation is rejected. Time limits for filing the Statement of defence and the Counterclaim for revocation extended to 7 February 2024, as it was not possible to upload the Counterclaim for revocation on 6 February 2024 for internal technical reasons (Rule 9(3) RoP, Rule 25(1) RoP). Although the Statement of defence shall include a Counterclaim for revocation, the parties shall make use of the official forms available online (Rule 4(1) RoP). In practice, this means that the Counterclaim for revocation must also be filed in the workflow provided for this purpose by the CMS. Only when this requirement has been met is the Counterclaim for revocation properly filed. Where the defendant has filed a Statement of defence in due time in accordance with the requirements of Rule 25.1 RoP, the time limit for filing the Counterclaim for revocation in the dedicated workflow of the CMS may be extended retrospectively upon request (Rule 9.3 (a) RoP) and subject to the following conditions: Firstly, the defendant must have already made a first attempt to file the Counterclaim for revocation in due time in the workflow provided for this purpose before the expiry of the time limit. Secondly, the defendant must have uploaded the Counterclaim for revocation to the correct workflow without culpable delay after the expiry of the deadline.