1. Key takeaways
An appeal against an order denying a request to reject
an action as manifestly bound to
fail according to R.361 RoP is admissible under the
requirements of R.220.2 and R.220.3 RoP
A discretionary review by the Court of Appeal pursuant to R.220.3 RoP is only admissible if leave to appeal against the impugned order is required (R.220.2 RoP (1)) and the Court of First Instance refused to grant leave within 15 days of the order (R.220.3 RoP (2)). In case of an order made solely by the judge-rapporteur or the presiding judge, it also depends on whether it may be appealed directly. Unless otherwise provided, R.220.3 ROP provides for the grant of leave to appeal by the standing judge only if the subject-matter of the appeal, in case leave is granted, is an order issued by a panel (see Court of Appeal, order of 21 March 2024, UPC_CoA_486/2023, APL_595643/2023 para 21).
Such order is a case management order; as such it can
only be the subject-matter of an
appeal if it has been issued by a panel
The order denying a R.361 RoP request is a case management order as meant in R.333.1 RoP. The notion of a ´case management decision or order´ is a broad concept that calls for a broad interpretation. All case management orders and decisions, notably those mentioned in R.334 RoP, can be subject to review under R.333 RoP (Court of Appeal, order of 21 March 2024, UPC_CoA_486/2023 APL_595643/2023, para 35). According to R.334 (h) RoP, to dismiss a claim summarily if it has no prospect of succeeding is a proper use of case management powers. A fortiori this includes the rejection of a R.361 RoP request.
2. Division
CoA Luxemburg
3. UPC number
UPC_CoA_454/2024
4. Type of proceedings
Infringement Proceedings
5. Parties
Claimant: Suinno Mobile & AI Technologies Licensing Oy
Defendent: Microsoft Corporation
6. Patent(s)
EP 2 671 173
7. Jurisdictions
Central Division Paris
8. Body of legislation / Rules
R.361 RoP, R.262A RoP; R.220.2 and R.220.3 RoP
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