Decision of the Court of Appeal of the Unified Patent Court issued on 5 May 2025, UPC_CoA_635/2024, APL_58934/2024
Order of the Court of First Instance of the Unified Patent Court Central division (Paris seat) issued on 2 April 2025 concerning the generic procedural applications Nos. App_61657/2024, 61782/2024 and 61784/2024 UPC_CFI_164/2024
When facing the failure of the defendant to file its statement of defense within the time limit, the Unified Patent Court may draw two main procedural consequences from such failure.
Pursuant to R. 235.3 RoP, if the respondent fails to lodge a Statement of response a reasoned decision may be handed down.
Similarly, a failure to lodge a Statement of response triggers application of R. 357 RoP on decisions by default.
The Court of appeal has reviewed a case where the defendant filed its statement whihout meeting the requirement to be represented.
The Court of Appeal issued an order on 12 February 2025, holding that representation is a point of admissibility involving public policy considerations (due process) which the Court may examine at any time, also of its own motion. Lawyers and European patent attorneys are not exempted from the duty to be represented if they themselves are parties in cases before the UPC. Consequently, the fact that Respondent 1 is an authorised representative himself did not relieve him from the requirement of being represented.
Moreover, Respondent 1 is chair of the board of Respondent 2, and the Court decided that it is unallowed to represent Respondent 2 as not meeting the requirement of independence of representatives.
Since both respondents failed to instruct an autorised representative within the time limit set by the Court in the order of 12 February, the court decided that they failed to lodge a Statement of response.
In view of these facts, the Court of Appeal explained its choice between a reasoned decision pursuant to R. 235.3 RoP pr a default decision pursuant to R. 357.1 RoP.
A failure to lodge a Statement of response can result in a decision by default pursuant to R. 357.1 RoP, but this requires a request.
When considering whether to give a decision by default, the Court may consider the merits of the claim. A decision by default will go against the failing party. On the other hand, it “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 to give such decision” (R. 355.2 RoP).
For a reasoned decision pursuant to R. 235.3 RoP, on the other hand, no request is required.
The Court underlined that it has discretion when it comes to giving a reasoned decision or a default decision.
This is regularly underlined by the Court, and the Paris Central reminded that in a situation in which a party fails to take a procedural step in the stated timeline and the Rules of Procedure provide that a decision by default may be given the Court is not obligated to issue such a decision but retains discretionary power even where the default is evident and thereare no justifying elements.
Regarding the difference between reasoned decision and decision by default, the Court analysed the drafting hitory of the Rules of procedures to explain that :
- There has been a separation between a decsion by default and a reasoned decision,
- 235.3 RoP (reasoned decision) is a lex specialis which applies if the Statement of response is not lodged timely,
- No request is needed for the court to hand down a reasoned decision,
- The remedy against decision by default in R. 356.1 RoP applies to reasoned decision : Application to set aside that decision within one month of service.