Key takeaways
R. 360 RoP requires that an event occured after the action was filed, rendering the action inadmissible or unfounded – this requirement is not fulfilled if the Defendant relies on an own earlier action requesting the Court to adjudicate FRAND-compliant terms for a cross-license agreement potentially concerning the patent-in-suit.
[6] Pursuant to R. 360 RoP, if the Court finds that an action has become devoid of purpose and that there is no longer any need to adjudicate on it, it may at any time, on the application of a party or of its own motion, after giving the parties an opportunity to be heard, dispose of the action by way of order.
[7] The wording of R. 360 RoP: “action has become devoid of purpose” and “there is no longer need to adjudicate” (emphasis added) indicates that this provision applies where an event occurred after the action was filed, rendering the action inadmissible orunfounded (differently from R. 361, as will be seen).
[8] This provision gives the Court broad discretion to consider whether the prerequisites for disposing of the action are present. The assessment is not in the hands of the parties, although the facts and arguments brought forward by them can have an impact on the Court’s decision – CoA, 12 May 2025, UPC_CoA_328/2024, para. 42.
[9] To assess if an action has become devoid of purpose, the Court must take into consideration the interest of the party that filed the action. In fact, as the CoA has pointed out, an action is not devoid of purpose if the party filing the action has a legal interest. A legal interest exists where the interested party, if successful, benefits from an advantage – CoA, 9 January 2025, UPC_CoA_584/2024. In this regard, the Court notes that in R. 360 RoP, contrary to the withdrawal under R. 265.1 RoP, the interest of the other party stated in a Statement of Defence is not autonomously taken into consideration. The assessment is made in light of the interest of the party filing the action.
[10] The present action has not become devoid of purpose. Ericsson does not claim that any event occurring after the filing of the action has rendered it inadmissible. Instead, Ericsson relies on another action filed four months earlier, concerning a cross-licensing agreement which, if approved by the Court, would cover the patent in suit in these proceedings. This, the relevant event either occurred before this action was filed (if we consider the filing of the action at The Hague) or has not yet occurred (if we consider the decision to be taken in such proceedings at The Hague). In either case, there are no grounds to conclude that this action has become devoid of purpose by an event that occurred after the action was filed.
[11] Notwithstanding the above, Transsion continues to have an interest in these proceedings, as no Court ruling has yet assessed its claim, nor has any other event affected its rights.
R. 361 RoP requires a “clear-cut case”, and the lack of grounds must be evident, clear, and obvious even upon preliminary review – this requirement is not fulfilled if the inadmissibility of the action is only a possible outcome and relies on a full assessment of facts, law, and evidence, in this case: whether the patent-in-suit would indeed be included in a cross-license under FRAND terms in proceedings before a separate Court.
[17] The Court finds that Ericsson’s assertion that the cross-licence referred to in The Hague action would encompass the (alleged) 5G SEP asserted by Transsion in these proceedings is not sufficient to justify dismissing the present action as manifestly inadmissible, for the following reasons.
[18] The Court first notes that, as the patent holder, Transsion is entitled to file an action to protect its rights. This understanding follows the consistent case law of the ECJ (e.g., par.
46 of Huawei v. ZTE, 16 July 2015). Although the Court acknowledges that the right to obtain an injunction is not absolute, and that a Court may limit or deny an injunction in specific circumstances, those are to be assessed in the action filed and in light of the evidence produced. Not on a prima facie basis, as R. 361 requests.
[19] Furthermore, Ericsson treats the inclusion of EP 910 in the cross-licence proceedings in The Hague as a possible outcome (as indicated by its use of the word “would”). This
assumption of an eventual future result is, in itself, insufficient to justify dismissing the present action as manifestly inadmissible, as a mere conjecture about a possible future
development falls far short of the clear and immediate assessment of manifest inadmissibility. Moreover, Ericsson’s argument that this action is manifestly inadmissible relies on proceedings that still require a full assessment of facts, law, and evidence, rendering it even less manifest that this action is bound to fail. The CD Munich (CD Munich, 24 March 2026, 2296/2025) has held that where an assessment of facts, law and evidence is necessary, the action is not manifestly inadmissible within the meaning of R. 361 RoP. The same reasoning applies here. Indeed, since such an assessment is required in both sets of proceedings, it is even more evident that the threshold for manifest inadmissibility is not met.
Division
LD Lisbon
UPC number
UPC_CFI_850/2026
Type of proceedings
Applications under R. 360 and 361 RoP in infringement action
Parties
CLAIMANT:
Shenzhen Transsion Holdings Co. Ltd. (Shenzhen, PR China)
DEFENDANTS:
- Telefonaktiebolaget LM Ericsson (Publ) (Stockholm, Sweden)
- Ericsson Holding International B.V. (Breda, the Netherlands)
- Ericsson Telecommunicatie B.V. (Breda, the Netherlands)
- Ericsson Telecomunicações, Lda. (Porto Salvo, Portugal)
Patent(s)
EP 4 123 910
Body of legislation / Rules
Rules 360, 361 RoP
