1. Key takeaways
R 355.2 RoP limited to a decision by default against the Defendant
R. 355.2 RoP only applies when a decision by default is sought "against the defendant of the claim ". It does not apply when a decision by default is requested by the defendant against the claimant because the claimant failed to take a step within the time limit foreseen in the RoP or set by the Court or it failed to appear at an oral hearing pursuant to R. 355.1(a) and (b) RoP.
Rationale underlying R. 355.2 RoP
The rationale underlying R. 355.2 RoP is that a decision by default against the defendant by which the Court orders the remedy sought by the claimant or the counter-claimant does not only require that the Court finds that the conditions mentioned in R. 355.1 (a) or (b) RoP are met but also finds that the conditions, that the order of the remedy sought presupposes, are met based on the facts that are put forward by the claimant which justify the claims, providing the procedural conduct of the defendant does not preclude to give such decision.
In contrast, a decision by default against the claimant by which
the Court rejects the remedy sought by the claimant only requires a
finding by the Court that the
conditions mentioned in R. 355.1(a) or (b) RoP are met and a
balance of the interests of the parties.
Principles of fairness and equity
When exercising its discretion, the Court shall ensure that proceedings are organized on the basis of the principles of fairness and equity in the most efficient and effective manner (RoP, preamble paras. 2 and 4) and must consider the balance of interest of the parties (headnote iii).
The principle of fairness and equity is further reflected in the RoP to the benefit of the party against whom a decision by default has been given since that party, once a decision by default has been given, may lodge an Application to set aside that decision within one month of service of the decision (R. 356 RoP) (headnote v).
Effectiveness of security for costs (R. 158 RoP)
The effectiveness of security for costs ordered under R. 158 RoP is ensured by the power granted to the Court under R. 158.5 RoP to give a decision by default if the party bound to provide a security for costs fails to do so. Zhe Court may only under exceptionaI circumstances derogate from this general rule and the reference to the status quo of the action may not justify such a derogation.
2. Division
CoA, Klaus Grabinski, Emmanuel Gougé, Peter Blok
3. UPC number
UPC_CoA_363/2025
4. Type of proceedings
Appeal Proceedings
5. Parties
Applicant and Appellant (Defendant in the main proceedings before the CFI): Microsoft Corporation
Respondent (Claimant in the main proceedings before the CFI): Suinno Mobile & Al Technologies Licensing Oy
6. Patent(s)
EP 2671173
7. Body of legislation / Rules
R. 355 RoP
R. 158 RoP
R. 356 RoP
Art. 75(1) UPCA
Art. 69(1) UPCA
Art. 37 of the Statute of the UPC
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.
