1. Key takeaways
A connection joinder pursuant to R. 340 RoP cannot result in the referral of an action to another division of the Court of First Instance beyond the possibilities provided for referral of actions in Art. 33 UPCA.
A joinder pursuant to R. 340 RoP cannot result in the referral of an action to another division of the Court of First Instance beyond the possibilities provided for referral of actions in Art. 33 UPCA. Interpreting R. 340 RoP in a way that permits such referrals would conflict with the competence regime of the UPCA and would therefore be contrary to Art. 41(1) UPCA and R. 1.1 RoP, which stipulate that the provisions of the UPCA take precedence over the Rules of Procedure. Furthermore, R. 340 RoP expressly provides that Art. 33 UPCA must be respected.
Art. 33 UPCA does not permit the referral of an action for infringement from a local division to the central division without the agreement of the parties involved.
Art. 33 UPCA does not permit the referral of an action for infringement from a local division to the central division without the agreement of the parties involved. Under Art. 33(5) UPCA, a local division may proceed in accordance with Art. 33(3) UPCA when an action for infringement is brought before it while a revocation action between the same parties relating to the same patent is pending before the central division. Art. 33(3)(c) UPCA allows the referral of an infringement action with a counterclaim for revocation to the central division with the agreement of the parties. Art. 33(5) in conjunction with Art. 33(3) UPCA does not allow a referral of an infringement action without the agreement of the parties.
2. Division
Luxembourg Court of Appeal
3. UPC number
UPC_CoA_106/2024
ORD_42780/2024
4. Type of proceedings
Appeal against dismissal of Preliminary Objection/request for connection joinder pursuant to R. 340.1 RoP
5. Parties
APPELLANTS and Defendants in the main proceedings:
ADVANCED BIONICS AG (Stäfa, Switzerland)
ADVANCED BIONICS GMBH (Fellbach-Oeffingen, Germany)
ADVANCED BIONICS SARL (Bron Cedex, France)
RESPONDENT and Claimant in the main proceedings:
MED-EL ELEKTROMEDIZINISCHE GERÄTE GESELLSCHAFT M.B.H. (Innsbruck, Austria)
6. Patent(s)
EP 4 074 373
7. Body of legislation / Rules
Rule 340.1 RoP, Art. 33 UPCA
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