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.
Related Cases
Rematec GmbH & Co KGvsEurope Forestry B.V.
The Court of Appeal of the Unified Patent Court refused leave to appeal against an order of the Local Division Mannheim that had rejected Rematec's two cost determination applications as time-barred and dismissed its applications for reinstatement. The Court held that an application for leave to appeal under Rule 157 in conjunction with Rule 221 of the Rules of Procedure is inadmissible insofar as it is directed against the rejection of a reinstatement application, since Rule 320.7 expressly precludes appeals against orders on reinstatement. The Court also rejected Europe Forestry's request to impose costs on Rematec, noting that cost reimbursement is generally not available in cost determination proceedings.
Rematec GmbH & Co KGvsEurope Forestry B.V.
The Court of Appeal of the Unified Patent Court refused leave to appeal against an order of the Local Division Mannheim that had rejected Rematec's two cost determination applications as time-barred and denied reinstatement into the missed deadlines. The Court of Appeal held that an application for leave to appeal under R. 157 and R. 221 RoP is inadmissible insofar as it challenges the rejection of a reinstatement application, because R. 320.7 RoP expressly excludes appeals against orders on reinstatement. No arguable grounds for leave to appeal were identified regarding the rejection of retroactive deadline extension requests.
Promosome LLC and The Scripps Research InstitutevsBioNTech SE, BioNTech Manufacturing GmbH, BioNTech Manufacturing Marburg GmbH, BioNTech Innovative Manufacturing Services GmbH, BioNTech Europe GmbH, Pfizer Manufacturing Belgium NV, Pfizer SAS, Pfizer AB, and Pfizer, Inc.
This order of the Court of Appeal of the Unified Patent Court concerns three appeals (UPC-CoA-146/2026, UPC-CoA-147/2026, and UPC-CoA-148/2026) relating to EP 2 401 365. The appellants, Promosome LLC and The Scripps Research Institute, sought a one-month extension of the deadline for lodging their Statements of grounds of appeal, citing heavy professional workload and school holiday periods. Both groups of respondents (BioNTech and Pfizer entities) opposed the extension. The Court of Appeal rejected the applications, holding that the circumstances relied upon were foreseeable and did not justify an extension of the procedural time period.
Kodak Holding GmbH, Kodak GmbH, Kodak Graphic Communications GmbHvsFujifilm Corporation
This is a procedural order from the Court of Appeal of the Unified Patent Court concerning European Patent EP 3 511 174. The Respondents (Kodak entities) requested a one-week extension of the deadline to file written comments on the Applicant's (Fujifilm's) request for rehearing. The Court granted the extension until 23 October 2026, finding the request admissible and well-founded because the Applicant had consented, the extension was brief, and the Respondents' representatives had been occupied preparing for a related oral hearing before the Düsseldorf Regional Court that was postponed shortly before the application was filed.
Huawei Technologies Co. Ltd.vsSercomm Italia SRL
This is a procedural order from the Local Chamber Munich of the Unified Patent Court concerning alternative service of process on Sercomm Italia SRL in a patent infringement action involving European Patent EP 3 611 989 B1. After multiple failed attempts to serve the Italian defendant at its registered business address, the rapporteur had previously ordered under Rule 275.2 RoP that the prior service measures constituted valid service. The present order addresses the fact that notification of that earlier order was unsuccessful and directs additional means of notification to ensure the defendant is informed.
Network System Technologies LLCvsQualcomm Incorporated, Qualcomm Technologies, Inc., Qualcomm Germany GmbH
The Court of Appeal of the Unified Patent Court rejected Network System Technologies LLC's (NST) applications for re-establishment of rights under R. 320 RoP. NST had sought to revive its late-filed appeals against the rejection of its R. 190 Applications (production of evidence) in three infringement proceedings against Qualcomm before the Munich Local Division. The Court held that NST failed to demonstrate that all due care had been taken, as the circumstances cited did not constitute exceptional circumstances or excusable error under the precedent set in AIM v Supponor.
Dealing with a patent challenge?
Whether it's a Section 3(d) rejection, a post-grant opposition, or a FRAND dispute, Arctic's patent litigation team has handled it. Get a strategy call.
Disclaimer: This page contains an automated summary based on publicly available judicial records. The content is generated for informational purposes only and does not constitute legal advice. Always verify details against the original source judgment before relying on this information for any legal purpose. If you believe any information is inaccurate, please contact us.