Rule 340 – Connection Joinder

1. In the interests of the proper administration of justice and of avoiding inconsistent decisions, where more than one action concerning the same patent (whether or not between the same parties) is pending before:

(a) different panels (whether in the same or different divisions); or

(b) different panels of the Court of Appeal, the panels may by agreement, at any time, after hearing the parties, order that two or more actions shall, on account of the connection between them, be heard together. Article 33 of the Agreement shall be respected.

2. The actions may subsequently be disjoined.

Case Law:

Court of Appeal

IPPT20260417, UPC CoA, Guardant v Sophia
Leave to appeal a cost decision granted (R. 221.3 RoP). Decision should have been issued after Guardant had access to the unredacted version of the application and exhibit SG106, and had the opportunity to comment on them. Request to join the appeal with the pending appeal on the merits refused (R. 340 RoP). The assessment of costs is the subject of a specific and separate procedure (R.150 et seq. RoP), which also includes a specific appeal procedure in accordance with R.157 and R. 221 RoP. According to R.221.4 RoP., if leave to appeal a cost decision is granted, the standing judge shall decide the appeal.

IPPT20240905, UPC CoA, Advanced Bionics v Med-EL - II
Connection joinder only possible within the competence limits of the competence regime of the UPCA (Article 33 UPCA, Rule 340 RoP). Referral of an action for infringement from a local division to the central division only possible with the the agreement of the parties involved.

Court of First Instance

IPPT20251031, UPC CFI, CD Paris, IMI v Belparts
Request to join the counterclaim for infringement together with the pending infringement action rejected. (Rule 340 RoP).  Allowing the requests would still result in multiple oral hearings and multiple decisions, as a result of procedural choices made by the parties. 

IPPT20250923, UPC CFI, CD Paris, IMI Hydronic v Belparts
Request to join proceedings not granted, parties invited to comment and reformulate the request within 10 days (Article 33 UPCA, Rule 340 RoP). Hearing the counterclaim for infringement and the infringement actions together - will still result in more than one action, as the revocation action and the counterclaim for revocation are not included in the request .A joinder cannot result in the referral of an action to another division of the Court of First Instance beyond the possibilities provided for referral of actions in Art. 33 UPCA . The exceptions regarding the hearing of infringement actions and revocation actions pursuant to Art. 33 (3), (4) UPCA, do not apply. 

IPPT20240924, UPC CFI, CD Milan, Eoflow v Insulet
Panel confirms order judge-rapporteur rejecting connection joinder (R. 340 RoP). The parallel handling of the two cases, alongside with the appointment of two judges in both proceedings, were sufficient measures to prevent the issuance of contradictory decisions.

IPPT20240719, UPC CFI, CD Paris, Meril Italy v Edwards Lifesciences
Patent maintained as amended by auxiliary request II. Connection joinder and competence of the Central Division (Rule 340 RoP, Article 33 UPCA). Coordination of revocation action and counterclaims for revocation through consolidation through consolidation before the local division is not possible. The competence of the Central Division cannot be derogated by virtue of the joinder of the proceedings. Interpreting Rule 340 ‘RoP’ to require a joint hearing for the revocation proceedings before a panel comprising all judges from both the central and local divisions […] lacks a legal basis in the ‘UPCA’ and the ‘RoP’, nor is it supported by EU law principles.

IPPT20240222, UPC CFI, LD Mannheim, MED-EL v Advanced Bionics
Request for joint hearing of revocation and infringement actions rejected (Rule 340 RoP, article 33 UPCA). Inadmissible because it conflicts with jurisdictional regime of article 33(1) and (4) UPCA. Even if the plaintiff had been granted a right to choose between the local and the central division when bringing the infringement action pursuant to Art. 33(5), first sentence, UPCA, the exercise of this right to choose in favour of the local division may not be subsequently overridden by a joinder pursuant to R. 340.1. In any case the discretion provided in Rule 340 RoP because it does not serve the interest of a proper administration of justice. The nullity proceedings before the Central Division are already at an  more advanced stage and a referral toe the Central Division a requested would be accompanied by a change in the language of the proceedings. 

IPPT20240227, UPC CFI, CD Paris, Meril Italy v Edwards Lifesciences
Request to hear the revocation action together with the counterclaims in the Munich Local Division proceedings rejected (Rule 340(1) RoP). The application of that Rule does not appear to be actual, as no hearing seems to have been set in the two proceedings.