Home » UPC decisions » Luxembourg Court of Appeal » CoA, March 21, 2024, order, UPC_CoA_486/2023

CoA, March 21, 2024, order, UPC_CoA_486/2023

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Key takeaways

R 220.3 RoP provides for the admission of an appeal against an order issued by a panel. However, the order under appeal was issued by the judge rapporteur. Principally, according to R 333.1 RoP such an order is to be reviewed, upon request, by the panel. In the instant case, the question on appeal is precisely whether the judge rapporteur was entitled to decide on the admissibility of the appellants’ application for review under R 333.1 RoP or whether the panel should have decided, which would have required a decision by the panel under R 333.5 RoP. Therefore, the lack of an order or decision issued by the panel cannot lead to the inadmissibility of the application under R 220.3 RoP.

R 333.4 RoP expressly provides that the panel decides on the application for review. It is therefore an “act” which, according to R 1.2 RoP, is reserved exclusively for the panel. This also applies to the decision whether an application under R 333.1 RoP is admissible. In absence of a specific provision on the compentence of the judge rapporteur to decide on the admissibility of an application under R 333.1 RoP, this decision is also reserved exclusively for the panel.

If an objection is rejected, the judge rapporteur may allow an appeal and his order may be challenged on appeal without the need for prior review by the panel under R 333.1 RoP. If the appeal is allowed, the losing party has the choice of either appealing or filing an application for review under R 333.1 RoP. If the judge rapporteur has not allowed the appeal, the party may request a review by the panel. An appeal may then be lodged against the decision of the panel if the panel has allowed the appeal in accordance with R 220.2 RoP, otherwise it may be made the subject of an application for a discretionary review in accordance with R 220.3 RoP.

The standing judge or the panel can request that the parties lodge further written submissions. However, this will not always be neccessary.

Division

Court of Appeal

UPC number

UPC_CoA_486/2023

Type of proceedings

Discretionary review

Parties

Netgear Inc., Netgear Deutschland GmbH, Netgear International Limited

Huawei Technologies Co. Ltd.

Patent(s)

EP 3 611 989

Jurisdictions

Place jurisdictions

Body of legislation / Rules

Rule 220. RoP, Rule 221.2 RoP, Rule 333 RoP, Rule 20.2 RoP


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