ARTICLE
5 September 2024

CoA Luxemburg, August 21, 2024, Order Concering An Application For A Discretionary Review By The CoA Under Rule 220.3 RoP, UPC_CoA_454/2024

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Bardehle Pagenberg

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A discretionary review by the Court of Appeal pursuant to R.220.3 RoP is only admissible if leave to appeal against the impugned order is required (R.220.2 RoP (1))...
Luxembourg Intellectual Property
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1. Key takeaways

An appeal against an order denying a request to reject an action as manifestly bound to
fail according to R.361 RoP is admissible under the requirements of R.220.2 and R.220.3 RoP

A discretionary review by the Court of Appeal pursuant to R.220.3 RoP is only admissible if leave to appeal against the impugned order is required (R.220.2 RoP (1)) and the Court of First Instance refused to grant leave within 15 days of the order (R.220.3 RoP (2)). In case of an order made solely by the judge-rapporteur or the presiding judge, it also depends on whether it may be appealed directly. Unless otherwise provided, R.220.3 ROP provides for the grant of leave to appeal by the standing judge only if the subject-matter of the appeal, in case leave is granted, is an order issued by a panel (see Court of Appeal, order of 21 March 2024, UPC_CoA_486/2023, APL_595643/2023 para 21).

Such order is a case management order; as such it can only be the subject-matter of an
appeal if it has been issued by a panel

The order denying a R.361 RoP request is a case management order as meant in R.333.1 RoP. The notion of a ´case management decision or order´ is a broad concept that calls for a broad interpretation. All case management orders and decisions, notably those mentioned in R.334 RoP, can be subject to review under R.333 RoP (Court of Appeal, order of 21 March 2024, UPC_CoA_486/2023 APL_595643/2023, para 35). According to R.334 (h) RoP, to dismiss a claim summarily if it has no prospect of succeeding is a proper use of case management powers. A fortiori this includes the rejection of a R.361 RoP request.

2. Division

CoA Luxemburg

3. UPC number

UPC_CoA_454/2024

4. Type of proceedings

Infringement Proceedings

5. Parties

Claimant: Suinno Mobile & AI Technologies Licensing Oy

Defendent: Microsoft Corporation

6. Patent(s)

EP 2 671 173

7. Jurisdictions

Central Division Paris

8. Body of legislation / Rules

R.361 RoP, R.262A RoP; R.220.2 and R.220.3 RoP

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