Short Summary
This case concerns an appeal before the Court of Appeal of the Unified Patent Court regarding a security for costs order. The Munich Local Division's judge-rapporteur had ordered Chint to provide security for costs in favor of JingAo in infringement proceedings concerning European patent EP 2 787 541. The Court of Appeal declared the appeal inadmissible, holding that a security for costs order issued by a judge-rapporteur is a case management order under R. 333.1 RoP that may only be appealed after review by the panel of the Court of First Instance.
Detailed Summary
This order was issued by the Court of Appeal of the Unified Patent Court on 9 July 2025 (APL_23093/2025, UPC_CoA_430/2025) in proceedings concerning a request for security for costs.
FACTS:
JingAo Solar Co., Ltd. is the registered proprietor of European patent EP 2 787 541 (EP 541), relating to a solar cell. JingAo initiated an infringement action against Chint New Energy Technology Co., Ltd. and five other parties before the Munich Local Division (ACT_42211/2024, UPC_CFI_425/2024). Chint et al. filed a counterclaim for revocation.
Earlier in the proceedings, Chint et al. had applied under R. 158 RoP for JingAo to provide security for costs. By order of 19 March 2025, the Munich Local Division granted this application, ordering JingAo to provide €200,000 in security. That order was not appealed.
JingAo then made its own R. 158 RoP application, seeking an order that Chint et al. provide security for costs. By order of 5 May 2025, the judge-rapporteur of the Munich Local Division granted the application against Chint but rejected it in respect of the five other defendants. The judge-rapporteur granted leave to appeal. The reasoning was based on the experience that requests for service from Chinese authorities are often not forwarded or are objected to and returned, making cost decisions potentially unenforceable. The judge-rapporteur considered JingAo not merely as the claimant in the infringement action but also as the defendant in respect of the counterclaim for revocation, leaving open the question of whether a party acting solely as claimant is entitled to request security under Art. 69(4) UPCA and R. 158 RoP.
Chint appealed, arguing that Art. 69(4) UPCA does not provide a legal basis for an order against a party who is both a defendant in an infringement action and a claimant in respect of a counterclaim for revocation, and that the Munich Local Division's reasoning was contradictory. JingAo requested dismissal of the appeal, arguing that R. 158 RoP provides the legal basis and that the principle of equality of arms requires both parties to be ordered to provide security.
Chint also filed a parallel application requesting suspensive effect or expedition of the appeal, which was rejected by order of 20 May 2025.
COURT OF APPEAL'S REASONING AND DECISION:
The Court of Appeal (Panel 1a: Klaus Grabinski, President; Peter Blok, judge-rapporteur; Emanuel Gougé) declared the appeal inadmissible. The Court held that the impugned order is a security for costs order issued by the judge-rapporteur, which constitutes a case management order under R. 333.1 RoP (citing CoA 14 January 2025, UPC_CoA_651/2024, Total Semiconductor v Texas Instruments). Such an order may only be appealed if it has first been reviewed by the panel pursuant to R. 333.1 RoP. This system prevents unnecessary involvement of the Court of Appeal where the panel of the Court of First Instance does not share the opinion of the judge-rapporteur (citing CoA 21 March 2024, UPC_CoA_486/2023, Netgear v Huawei).
The Court further held that the inadmissibility of the appeal must be examined by the Court of Appeal of its own motion, regardless of whether JingAo raised it. The judge-rapporteur's express ruling that an appeal may be filed does not alter this assessment, as the admissibility of an appeal is not at the discretion of the judge-rapporteur of the Court of First Instance, and such a ruling does not create a legitimate expectation given the Court of Appeal's consistent caselaw.
Chint's request to refer the question of admissibility to the full Court of Appeal under R. 238A RoP was rejected, as the case was not of exceptional importance. The Court found no inconsistency in its caselaw on the admissibility of case management orders issued by the judge-rapporteur, noting that the two cited orders were issued by Panel 2, and Panel 1 concurred with this caselaw.
FINAL ORDER: The appeal was declared inadmissible. No costs order was issued, as this was not the final order concluding the action.
Practitioner Note
This case demonstrates the evidentiary and procedural standards applied in patent matters before Luxembourg (LU). Understanding the court's reasoning in Chint New Energy Technology Co., Ltd. vs JingAo Solar Co., Ltd. is valuable context for structuring arguments or assessing risk in similar proceedings.
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