Short Summary
The Court of Appeal of the Unified Patent Court addressed Volkswagen AG's request for rectification of a prior order that had directed Network System Technologies LLC (NST) to provide security for costs in three related proceedings. Volkswagen sought to have the order rectified to include a notification under R.158.4 RoP that failure to provide security could result in a decision by default under R.355 RoP. The Court of Appeal declined rectification but issued a separate order providing the required notification to NST.
Detailed Summary
This case arose from three related proceedings before the Court of Appeal of the Unified Patent Court concerning European Patents EP 1 875 583, EP 1 552 399, and EP 1 552 669. Volkswagen AG (the appellant/defendant in the main proceedings) was the defendant in infringement actions brought by Network System Technologies LLC (NST) before the Court of First Instance.
In a prior order dated 17 September 2024, the Court of Appeal had ordered NST to provide security for costs to Volkswagen in the amounts of EUR 100,000 in APL_25924/2024 (ACT_597693/2023), EUR 100,000 in APL_25928/2024 (ACT_597691/2023), and EUR 300,000 in APL_25922/2024 (ACT_597692/2023), either by deposit or by a bank guarantee issued by a bank licensed in the European Union, within three weeks from the date of service of the order.
On 25 September 2024, Volkswagen filed a request for rectification pursuant to R.353 RoP, seeking to have the order rectified to include a notification that if NST failed to provide the security within the specified time, a decision by default may be given in accordance with R.355 RoP in the respective infringement action. Alternatively, Volkswagen requested that the Court inform NST separately of this consequence. Volkswagen argued that there was an obvious slip in the order, as R.158.4 RoP requires the Court to provide such information.
The Court of Appeal, composed of Presiding Judge Rian Kalden, Judge Ingeborg Simonsson, and Judge Patricia Rombach, reasoned that while R.158.4 RoP does require the Court to inform the party that failure to provide adequate security within the stated time may result in a decision by default under R.355 RoP, the rule does not mandate that this information be included in the original order itself. The Court noted that Volkswagen had not requested inclusion of this information in the operative part of the Order in its Statement of Appeal and grounds of appeal. The Court therefore found no necessity for rectification of the Order.
The Court of Appeal issued a separate order on 27 September 2024 notifying NST that if it fails to provide adequate security—meaning the specified amount and in the required form as stated in the Order—within three weeks from the date of service of the Order (i.e., three weeks from 17 September 2024), the Court may give a decision by default pursuant to R.355 RoP.
Practitioner Note
This case demonstrates the evidentiary and procedural standards applied in patent matters before Luxembourg (LU). Understanding the court's reasoning in Volkswagen AG vs Respondent is valuable context for structuring arguments or assessing risk in similar proceedings.
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