Rule 21 – Appeal against decision or order on a Preliminary objection

1. A decision of the judge-rapporteur allowing the Preliminary objection may be appealed pursuant to Rule 220.1(a). An order of the judge-rapporteur rejecting the Preliminary objection may only be appealed pursuant to Rule 220.2.

2. If an appeal is lodged, proceedings at first instance may be stayed by the judge-rapporteur or the Court of Appeal on a reasoned request by a party.

Case Law:

Court of Appeal

IPPT20260211, UPC CoA, Valeo v Bosch
Appeal against order judge-rapporteur granting preliminary objection but not ending the proceedings admissible under R. 220.1 RoP. (Article 73 UPCA) An order granting a preliminary objection that does not end the proceedings is not a decision granting the preliminary objection in the sense of Rule 21.1 RoP. An order of the judge-rapporteur granting the preliminary objection but not terminating the proceedings in respect of one of the parties is neither a "decision" granting the preliminary objection within the meaning of the first sentence of Rule 21.1 RoP, nor is it an order that "rejects" the preliminary objection within the meaning of the second sentence of Rule 21.1 RoP. In the case of such an order, which does not fall within any of the grounds for appeal referred to in Article 73(1) and 73(2)(a) UPCA or Rule 220.1 of the RoP, the provisions of the second sentence of art. 21.1 of the RoP must apply by analogy. 

IPPT20260121, UPC CoA, Valeo v Bosch
Respondents invited to submit within seven days comments on the admissibility of an appeal on the basis of R. 220.2 RoP  of an order allowing a Preliminary Objection (R. 21 RoP, R. 220 RoP, Article 73 UPCA). Time limit filing Statement of response suspended (R. 235 RoP)

IPPT20251127, UPC CoA, Vivo v Sun Patent
Request to stay first instance proceedings pending appeal dismissed. (Rule 21.2 RoP) No exceptional circumstances. The mere fact that, the preliminary objection relates to a question of jurisdiction which has never been decided by the court and has triggered a high amount of controversial discussion among scholars, does not constitute exceptional circumstances which can justify a stay. 
 

IPPT20251031, UPC CoA, Sun Patent v Vivo
Request to stay first instance preliminary objection rejected. (Rule 21.2 RoP, Rule 295 RoP) Request to extend deadlines rejected. (Rule 9.3 RoP) A stay under Rule 21.2 RoP may be granted exceptionally, under the condition that an appeal against a decision on a preliminary objection has been already been filed under Rule 21.1 RoP.  And not by anticipation or speculation of such an appeal. As a general rule, it is not for the Court of Appeal to decide on the stay of proceedings pending before the first instance, unless there are exceptional circumstances . The same applies for extension of deadlines. The first instance is better informed of all the relevant circumstances of the case it also has a margin of discretion in managing the case. 

IPPT20250331, UPC CoA, ILME v Phoenix
Request to stay first instance because of pending appeal dismissed (R. 21.2 RoP).The proceedings in the present case do not at present require stay the first instance proceedings, but instead, to the extent possible, seek a ruling from the Court of Appeal on the jurisdictional issue raised in the preliminary objections R. 19 Rules of Procedure before the matter proceeds to the merits before the Court of First Instance

IPPT20240621, UPC CoA, Mala v Nokia
Reasoned request to stay proceedings must be in statement of appeal and lack thereof cannot be remedied at the interim conference (Rule 21.2 RoP). As a general rule, the main proceedings are not stayed pending an appeal because of the principle that proceedings before the Court of First Instance must as far as possible continue unhindered by any (procedural) appeals (Rule 223 RoP, Article 74 UPCA). A stay may be granted under exceptional circumstances, having regard to the relevant circumstances of the case, such as the stage of the revocation proceedings before the Court of First Instance, the stage of the appeal proceedings and the interests of the parties or if the impugned order were manifestly erroneous.

IPPT20240403, UPC CoA, Juul Labs v NJOY Netherlands

Appeal and the appellant’s request to set aside the orders of the Court of First Instance to rectify the name of the defendant (“Juul Labs, Inc”) to read “Juul Labs International, Inc.” rejected [Rule 9 RoP]. Direct appeal of order of judge-rapporteur admissible as explicitly provided for in Rule 21(1) RoP, no prior review by the panel required in this particular case. 

IPPT20240321, UPC CoA, Netgear v Huawei
 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. 

Court of First Instance

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)