1. Key takeaways
In the case of service outside the UPCA Contracting Member States, preliminary objections must be filed within one month of the actual date of service.
R. 271.6 (b) RoP stating that a statement of claim shall in general be deemed to be served on the addressee on the tenth day following posting does not apply to service outside the UPCA Contracting Member States. In addition, the actual date of service is decisive, not the date in the case management system.
Claimant may supplement legal grounds for jurisdiction after filing the claim.
The claimant is not limited to the jurisdictional arguments cited in the statement of claim and may supplement additional or alternative grounds in response to the preliminary objection.
Competence under Art. 33(1)(b) sentence 2 UPCA
Art. 33(1)(b) sentence 2 UPCA applies only to Art. 33(1)(b), not Art. 33(1)(a) UPCA. It expands, but does not restrict, joint actions against multiple defendants, provided there is a commercial relationship and the same alleged infringement. “Same alleged infringement” and “commercial relationship” requirements are not to be interpreted too narrowly.
Regarding “commercial relationship”, a commercial relationship of certain quality and intensity is necessary. This requirement is fulfilled if the defendants belong to the same group of companies and carry out related commercial activities with the same purpose, e.g., sale and distribution of the same products. However, “commercial relationship” was also confirmed with regard to a logistics service provider who does not belong to the same group of companies as other defendants but is involved in the distribution of the attacked embodiments.
Regarding the “same alleged infringement” in the context of Art. 33 (1)(b) UPCA , the focus is on the allegation of infringement, not the definitively proven infringement. The Local Division referred in the present case to the identical claims against all defendants based on the same patent and the same attacked embodiments. In addition, the claimant stated that the defendants were acting together. In this regard, it is not necessary that the contributions of individual defendants are identical.
2. Division
LD Munich
3. UPC number
UPC_CFI_127/2024 ACT_14859/2024
UPC_CFI_149/2024 ACT_16251/2024
4. Type of proceedings
Infringement action: Preliminary objection
5. Parties
Claimant: Headwater Research LLC
Defendants: Motorola Mobility LLC, Motorola International Sales LLC, Motorola Mobility Germany GmbH, Flextronics International Europe B.V.
6. Patent(s)
EP 3 110 072 (UPC_CFI_127/2024 ACT_14859/2024)
EP 3 110 069 (UPC_CFI_149/2024 ACT_16251/2024)
7. Body of legislation / Rules
Rule 13 RoP
Rule 19 RoP
Art. 33(1)(a) UPCA
Art. 33(1)(b) UPCA
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
