Key takeaways
Late filed requests and duty to provide evidence
The Court of Appeal may decide to disregard late filed requests, facts and evidence even if these were not objected by the other party (Rule 222.2 RoP). The Court of Appeal may exercise its discretion in this respect. When exercising this discretion, it shall take into account (a) whether a party seeking to lodge new submissions is able to justify that the new submissions could not reasonably have been made during the proceedings before the Court of First Instance; (b) the relevance of the new submissions for the decision on the appeal; (c) the position of the other party regarding the lodging of the new submissions.
Pursuant to Rule 172.1 RoP there is a duty to provide evidence that is already available to a party. The Court has discretionary power to request the production of evidence (Rule 172.2 RoP). It is not obliged to do so. In the event that the Court of First Instance finds that a party should have know that it was under a duty to submit a certain piece of evidence, it neither uses its discretion under Rule 172.2 RoP in a manifestly wrong manner, nor oversteps the boundaries of its discretion.
Bank guarantee issued by a bank licensed in the US does not provide adequate security
A bank guarantee issued by a bank licensed in the US does not provide adequate security, as Rule 158 RoP requires, as it is not equally adequate and more burdensome than one issued by a bank licensed in the EU. A bank guarantee issued by a US licensed bank may be subject to a different legal and regulatory framework, has to be enforced in the US, possibly involving litigation and/or exequatur proceedings in the US, involving delays and higher costs and, if issued in US Dollars, involves exchange rate risks.
As the reason for not allowing a bank guarantee to be issued by a US licensed bank is not solely based on nationality, but on substantive grounds, this is not contrary to any prohibition of discrimination.
Division
Court of Appeal
UPC number
UPC_CoA_301/2024
Type of proceedings
Infringement action
Parties
Appellant/Claimant in the main proceedings: ICPillar LLC
Respondents/Defendants in the main proceedings: 1) ARM Limited, 2) Apical Limited, 3) Arm France SAS, 4) Arm Germany GmbH, 5) Arm Germany d.o.o, 6) Arm Ireland Limited, 7) Arm Poland Sp. z.o.o, 8) Arm Sweden AB, 9) Simulity Labs Limited, 10) SVF Holdco (UK) Limited
Patent(s)
EP 3 000 239
Body of legislation / Rules
Rules 158, 172.1 and 172.2, 222.2 RoP, Art. 74(4) UPCA
