Rule 305 – Change in parties

1. The Court may, on application by a party, order a person to:

(a) be added as a party;

(b) cease to be a party;

(c) be substituted for a party.

2. The Court shall invite other parties to the proceedings to comment on the application, as soon as practicable after service of the application.

3. When ordering that a person shall become a party or shall cease to be a party, the Court may make appropriate orders as to payment of court fees and costs as regards such party.

Case Law

Court of Appeal

IPPT20250411, UPC CoA, Supponor v AIM Sport
Limited scope for review on appeal of a change or amendments of case (R. 263 RoP) or addition of a party (R. 305 RoP). Request to add a party (R. 305 RoP) is at the discretion of the court, weighing the evidence provided, the relevant circumstances, the interests of the parties and procedural efficiency. Among the circumstances that the Court may take into account are: whether the claimant was or should have been aware of the alleged infringing acts of such a person at an earlier stage, the involvement of the other parties with that person’s allegedly infringing acts, the effect on the other parties if the party is added as a party and the stage of the proceedings. The level of the duty of presentation and proof of such circumstances is lower when dealing with a request under R. 305 RoP than when dealing with the case on the merits. Risk of irreconcilable decisions: The Local Division rightly took into account a potential risk of irreconcilable decisions if the request would be rejected, and AIM had to initiate separate proceedings against TGI UK.

IPPT20240604, UPC CoA, Daedalus v Xiaomi
Application to withdraw appeal in relation to two (Xiaomi DE and Xiaomi NL) of several defendants rejected (Rule 265 RoP). Question whether Rule 305 RoP allows a withdrawal of an appeal against one or more but not all defendants in the proceedings before the Court of First Instance in a case such as the one at hand is left aside. 

Court of First Instance

IPPT20251204, UPC CFI, LD Düsseldorf, Aesculap v Shanghai Boijn Medical Instrument
Shanghai Bojin Electric Instrument & Device Co added as a party.  (Rule 305 1(a) RoP). Court proposes alternate course of action. 

IPPT20250211, UPC CFI, LD Helsinki, AIM Sport v Supponor
Rule 263 RoP application allowed after appeal but prior to filing of Statement of Defence. Amendments to the case must be explained in R. 263 application but can be detailed in an appendix. Adding new defendant and adding Germany and Spain allowed: procedural economy and aim to avoid the risk of irreconcilable and inconsistent decisions favours allowing adding a party at this stage. The latter also concerns situations should the case be initiated in another court and hence favours the acceptance of a new party. (R. 305 RoP). Unconventional situation, were the case re-starts and the front loaded nature of UPC procedure is protected.

IPPT20250117, UPC CFI, LD Munich, Sanofi v Accord
Sanofi Mature IP replaced by Sanofi SA in the present and all related proceedings (without objection) (R. 305 RoP). On 29 September 2024, the Sanofi group reorganized its group of companies, and Sanofi Mature IP has been dissolved without liquidation as all the shares of Sanofi Mature IP came to be held by its single shareholder, Sanofi SA. This resulted in the universal transfer of assets of Sanofi Mature IP to Sanofi SA, including the ownership of EP 466. 

IPPT20250107, UPC CFI, LD Munich, Sanofi v Accord
Change in parties (R. 305 RoP, R. 306 RoP, R. 310 RoP). Sanofi-Aventis France, which ceased to exist, is replaced by Sanofi Winthrop Industrie. As Sanofi Winthrop Industrie is already party to the proceedings this replacement has no consequence on proceedings. Sanofi Winthrop Industrie is bound by the proceedings as now constituted. Since it is undisputed that Sanofi Winthrop Industrie succeeded Sanofi-Aventis France from the moment Sanofi-Aventis France ceased to exist, there is no need to order a formal stay. It is sufficient to order that Sanofi-Aventis France be replaced by Sanofi-Aventis France. Since this decision may be reversed, Claimant No 2 shall be designated "Sanofi Winthrop Industrie as successor to Sanofi-Aventis France" in addition to Claimant No 2, which remains "Sanofi Winthrop Industrie".

IPPT20240925, UPC CFI, LD Munich, Hereaeus v Vibrantz - I
A counterclaim for revocation against a registered proprietor (R. 8.6 RoP) who is not entitled to be registered as proprietor (R. 8.5 RoP) is not manifestly bound to fail (R. 361 RoP) (R. 42 RoP, R. 25 RoP). In the event the registered proprietor and the person entitled to be registered as proprietor are not the same, the registered proprietor must file an application under Rule 305.1(c) RP as soon as possible. According to this provision, the court may, at the request of a party, order that one person replace another.

IPPT20240911, UPC CFI, LD Munich, Headwater v Motorola
Change in parties: correction of the party designation from a non-existent person or a person who does not have the capacity to be a party by analogous application of R. 305 RoP. A distinction must be made between the incorrect designation of a defendant and the designation of a non-existent person or a person who does not have the capacity to be a party to legal proceedings as a defendant. 

IPPT20240902, UPC CFI, LD Munich, Panasonic v Guangdong OPPO
Application to add OTECH Germany as third defendant rejected as late filed (Rule 305 RoP). Plaintiff was aware in June 2023 that OTECH Germany GmbH had been found guilty of patent infringement by the Mannheim District Court. […] it could and should have used its knowledge of this judgement as an opportunity to conduct further investigations, especially since it had already taken legal action against the first and second defendants before the local chamber for patent infringement. If it had done so, it would have been able to access the annual report, which has been available online since 4 August 2023, at an earlier date than 18 February 2024 and, accordingly, file the motion to allow the extension of the action much earlier than 5 June 2024. If the extension of the action were allowed, OTECH Germany GmbH would be limited by Art. 33 (4) UPCA to doing so within the framework of a counterclaim for revocation. In this context, a further restriction to those invalidity attacks already presented by the first and second defendants in the context of their invalidity counterclaim would not appear to be fair.