- within Privacy, Transport, Food, Drugs, Healthcare and Life Sciences topic(s)
1. Key takeaways
For the purposes of R. 355.2 RoP the appellant is regarded as the claimant in the appeal proceedings
A decision by default against the defendant of the claim or counterclaim may only be given where the facts put forward by the claimant justify the remedy sought and the procedural conduct of the defendant does not preclude giving such decision. R. 355.2 RoP thus only applies when a decision by default is sought “against the defendant of the claim or counterclaim”. 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 (CoA, 12 July 2025, UPC_CoA_363/2025, Microsoft v Suinno I, para. 17).
R. 355.2 RoP does not apply in appeal proceedings when a decision by default is requested by the respondent against the appellant because the appellant failed to take a step within the time limit foreseen in the RoP or set by the Court or failed to appear at an oral hearing pursuant to R. 355.1 (a) and (b) RoP.
This follows from the fact that it is the appellant who is seeking the “order” or “remedy” referred to in R. 355.2 RoP, namely by requesting that the Court of Appeal set aside the impugned order or decision. This is particularly pertinent in cases where the defendant is the appellant and has not provided security for costs. If the respondent on appeal who was the claimant before the Court of First Instance (CFI) were required to present facts in support of the judgment being upheld, the purpose of providing security for costs in the appeal proceedings would largely be defeated. Even though the appellant has not provided security for costs, the respondent would still be required to file a Statement of response, incurring additional costs. As established in the order for the provision of security by the appellant, there is a risk that these costs will not be reimbursed. It is precisely from this risk that the respondent is to be protected.
2. Division
Court of Appeal of the Unified Patent Court
3. UPC number
UPC_CoA_21/2026
4. Type of proceedings
Decision by default against the appellant (R. 355, 357 RoP)
Consequences of the failure to provide security for costs (R. 158.5 RoP
5. Parties
Appellant (Defendant in the Counterclaim for revocation proceedings): Suinno Mobile & AI Technologies Licensing Oy
Respondent (Claimant in the Counterclaim for revocation proceedings): Microsoft Corporation
6. Patent(s)
EP 2 671 173
7. Jurisdictions
UPC
8. Body of legislation / Rules
R. 355 RoP, R. 357 RoP; R. 158 RoP.
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