Key takeaways
Alternative service under R. 275.2 RoP may be ordered once formal service attempts fail for reasons attributable to the defendant, provided it is not contrary to the law of the state of service (R. 275.4 RoP)
The Court held that insisting on further formal service, once the defendant had actual knowledge of the claim, would be a mere formality. It also expressly confirmed, as required by R. 275.4 RoP, that the alternative service did not contravene the law of Italy, the state where service was to occur.
Actual knowledge of proceedings can be attributed to a defendant across a corporate group where its management is personally identical with the management of an already-served affiliate
The Court imputed knowledge of the statement of claim to the defendant because its directors were identical to those of an already-served sister company. The group shared a centralized legal department and a jointly proposed confidentiality club, evidencing coordinated group-wide handling of the litigation.
Under R. 275.3(b)-(c) RoP, the date of service may be deemed to be the date when actual knowledge was obtained, rather than a fictional date based on the ten-day presumption of R. 271.6(b) RoP
The claimant requested to deem service effected, by way of analogy to R. 271.6(b) RoP, on the tenth day after the first (failed) attempt at service.
The Court saw no need to rely on the proposed analogy, instead deeming service effected on the – earlier – date of actual service on the sister company.
Where formal notification of a court order fails through the intended electronic channel, the Court may order supplementary transmission measures, in particular, uploading the order into parallel case dockets where the party’s legal representative is also registered
Notification of the order granting alternative service initially failed via electronic channels: the notification e-mails containing a download link went unread or were deleted. The Court therefore resorted to two additional transmission channels to ensure effective notice:
1. Cross-Docket CMS Upload: Both orders were uploaded directly into the parallel proceedings of the sister companies, where the defendant’s counsel was also registered as UPC representative. Due to the existing attorney-client relationship, the Court reasoned that the defendant’s counsel is obligated to forward all court communications to their client. Since the managing directors of all companies are identical (see above), notification of the relevant parties is thus ensured.
2. Postal Service: Both orders were additionally served on the defendant’s counsel in paper form.
Division
Local Division Munich
UPC number
UPC-CFI_3452/2026
Type of proceedings
Place type of proceedings
Parties
Claimant: Huawei Technologies Co. Ltd.
Defendant: Sercomm Italia S.r.l.
Patent(s)
EP 3 611 989 B1
Jurisdictions
UPC
Body of legislation / Rules
R. 271.6(b), R. 275.1, R. 275.2, R. 275.3, R. 275.4 RoP
