Rule 356 – Application to set aside a decision by default
Print this page1. A party against whom a decision by default has been given may lodge an Application to set aside that decision within one month of service of the decision.
2. The Application to set aside a decision by default shall contain the party’s explanation for the default. It shall mention the date and number of the decision by default. The party shall pay a fee for the Application to set aside the decision by default, in accordance with Part 6. In the case of Rule 355.1(a) the Application shall be accompanied by the step the party has failed to take.
3. If the provisions of paragraph 2 are met the Application shall be allowed unless a party has been put on notice in an earlier decision that a further decision by default shall be final. If the Application is allowed, a note of allowance shall be included in any publication of the decision by default.
See also: Article 37 UPC Statute
Case Law
Court of First Instance
IPPT20250109, UPC CFI, CD Paris, ITCiCo Spain v BMW
Required explanation for setting aside a decision by default requires unforeseeable circumstances or force majeure (R. 356(2) RoP) means that the applicant must demonstrate that they were unable to comply with peremptory time limits or to appear at the oral hearing at which they were summoned (except as provided for in Rule 116 and 117 ‘RoP’) due to reasons beyond their control and therefore that the default is not attributable to their own fault but was caused by unforeseeable circumstances or force majeure. Non-availability of the defendant’s long-standing European Patent Attorney because of illness no excuse.