air up group GmbH v. Respondent

This order was issued by Judge-Rapporteur Tobias Pichlmaier of Panel 1 of the Local Division Munich on December 9, 2024, in proceedings concerning European Patent EP 3 655 341. The applicant, air up group GmbH (Munich, Germany), filed an application for preliminary measures on December 27, 2023, against the defendant, Guangzhou Aiyun Yanwu Technology Co., Ltd. (China). Since the applicant did not request ex parte proceedings, service of the application on the defendant was required under Rule 209.1, 270.2 RoP and Article 32(1)(c) UPCA.

The court's registry attempted both informal and formal service. Informal service by email to Mr. Andy Long (with whom pre-litigation correspondence had occurred) was attempted in February 2024 but remained unanswered. Formal service under Article 5(1) of the Hague Service Convention was initiated, with service documents posted to the competent Chinese authority on May 24, 2024, and received on June 11, 2024. Despite two inquiries from the registry (July 4, 2024 and October 23, 2024), the Chinese authority failed to process the service. On November 18, 2024, the Chinese authority merely indicated that the documents had been submitted to the Supreme Court for further processing.

The applicant requested the court to declare that the steps already taken constituted good service under Rule 275.2 RoP, with service deemed effective as of the date of the order, and that the order be published on the court's website.

The court reasoned as follows:

1. Service Requirements: Service was mandatory because the applicant did not seek ex parte provisional measures under Rule 212.1 RoP.

2. Attempt of Service under Rule 274.1 RoP: Service on a Chinese-domiciled defendant must follow the Hague Service Convention under Rule 274.1(a)(ii) RoP. Both formal and informal (voluntary) service are admissible methods.

3. Failure of Service: Neither informal nor formal service could be effected. The court applied Article 15 of the Hague Service Convention, finding that: (a) documents were transmitted on May 24, 2024; (b) more than six months had elapsed since transmission; (c) six months was adequate given the urgency of preliminary measures and the known difficulties with Chinese service authorities (citing experience of European national courts and LD Mannheim, UPC_CFI_332/2024); and (d) every reasonable effort had been made to obtain proof of delivery.

4. Alternative Service under Rule 275.1 RoP: The court held that Rule 275.1 RoP applies even when a foreign authority refuses service seriously and definitively, disagreeing with LD Mannheim's UPC_CFI_332/2024. A serious refusal includes non-processing for more than six months without apparent reason. However, alternative service must be factually and legally possible. In this case, no alternative method was possible: China opposes direct postal service under Article 10(a) of the Hague Service Convention, and the court could not determine whether other methods (such as service by public notice) would be compatible with Chinese law under Rule 275.4 RoP. Service at another place was also impossible as no other known address existed. Further delay would be unreasonable given the urgency of preliminary measures.

5. Confirmation of Good Service: While Rule 275.2 RoP's wording refers to unsuccessful attempts at alternative service, the court identified an 'unintended gap' and held that when service under Rule 274 RoP has failed and alternative service is neither possible nor reasonable, the court may order that the unsuccessful attempt under Rule 274 RoP constitutes good service.

Final Order: (1) The steps already taken to bring the request for preliminary injunction to the defendant's attention constitute good service under Rule 275.2 RoP; (2) Service is deemed effective as of the date of the order (Rule 275.3(b) RoP); (3) The defendant must file any objection within fourteen days (Rule 275.3(c) RoP); and (4) The registry shall publish the order, including party names and file number, on the court's website.