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1. Key takeaways
The RoP lack specific pleading rules for a FRAND defence.
Unlike in case of a counterclaim for revocation (R. 29 et seq. RoP) or an application to amend the patent (R. 30 et seq. RoP), where the number and content of the pleadings are precisely set out, the Rules of Procedure do not contain respective provisions with respect to a FRAND defence.
General principles of ‘fairness’ and adversarial proceedings from the preamble to the RoP (point 2) apply.
In the absence of specific rules, the Court must therefore apply the general principles of ‘fairness’ and adversarial proceedings set out in the preamble to the RoP (point 2).
The Court reasoned that since the FRAND defence was raised by the defendant, it was justified for the claimant, as the counter-defendant in the FRAND defence, to have the final say to ensure a ‘fair trial’.
Party defending against a FRAND defence is entitled to the last word.
The Court held that in the interest of fairness, the counter-defendant in the FRAND defence is entitled to the last word, without the Court having to assess whether arguments put forward in the FRAND defence were new.
Therefore, the Court allowed the claimant’s final submission on the FRAND defence but denied the defendant’s subsidiary request to respond further.
2. Division
Local Division Paris
3. UPC number
UPC_CFI_301/2025
4. Type of proceedings
Infringement Action
5. Parties
Claimant: Orange SA
Defendant: HMD Global Oy
6. Patent(s)
EP 2 345 029
7. Jurisdictions
UPC
8. Body of legislation / Rules
Preamble to the RoP (point 2), R. 9.2 RoP, R. 36 RoP, R. 32.3 RoP, R. 333 RoP
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.
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