Local Division Munich
UPC_CFI_508/2023
ACT_597609/2023

Order
of the Court of First Instance of the Unified Patent Court
Local Division Munich
issued on 21 January 2025

Headnotes:
1. The rules on service in the Rules of Procedure must be interpreted in
accordance with the principle of effective legal protection. It must therefore
always be possible to establish good service, at least in accordance with Rule
275.2 of the Rules of Procedure.
2. Where it has not been possible to serve the application for a provisional
measure in accordance with Rule 274 of the Rules of Procedure and where
there is no indication that the decision by default, which is issued subsequently
in the same proceedings, can be served in accordance with Rule 274 of the
Rules of Procedure, it is not necessary to attempt to serve the decision by
default in accordance with Rule 274 of the Rules of Procedure before an order
is made under Rule 275.2 of the Rules of Procedure.

APPLICANT
air up group GmbH, Friedenstraße 22a, 81671 Munich, Germany
represented by: Jan Boesing (Bardehle Pagenberg)

DEFENDANT
Guangzhou Aiyun Yanwu Technology Co., Ltd., A09-3, No.9, Chentian
Dashigang S.Road, Huangshi Street, Baiyun District, Guangshou, China

PATENT AT ISSUE
EP 3 655 341

PANEL/DIVISION
Panel 1 of the Local Division Munich

DECIDING JUDGE/S
This order has been issued by the Presiding Judge Dr. Matthias Zigann and the legally
qualified judges Pierluigi Perrotti and Tobias Pichlmaier

LANGUAGE OF THE PROCEEDINGS
English

SUBJECT-MATTER OF THE PROCEEDINGS
Service of a decision by default

SUMMARY OF FACTS
The proceedings concern an application for provisional measures. The defendant is
domiciled in China. The applicant has not requested for an ex-parte proceeding.
Therefore, the service of the application at the defendant's domicile was arranged.
The history of service is as follows:
27/12/2023 Applicant files application for interim measures and pays court fees
04/01/2024 Court’s registry starts preparations for the formal service of the
application in China according to Article 5 (1) of the Hague Service
Convention.
02/02/2024 In order to expedite service, the applicant, at the suggestion of the
Registry of the Court, asks Mr Andy Long by e-mail whether informal
service of the application by e-mail would be accepted on a voluntary
basis (Article 5(2) of the Hague Service Convention); based on the pre-
litigation correspondence with Mr Andy Long, this approach was
promising; the e-mail remains unanswered.
21/02/2024 In order to expedite service, the Registry of the Court of First Instance
asks Mr Andy Long by e-mail whether service of the application by e-
mail is accepted on a voluntary basis; this e-mail also remains
unanswered.
07/03/2024 Court registry requests for necessary copies and translations for formal
service in China
02/05/2024 Submission of the requested copies and translations by the applicant,
after significant difficulties in translating all the documents in a short
period of time.
24/05/2024 Posting of the service documents by registry requiring the defendant to
lodge an Objection to the Application for provisional measures within a
time limit of two weeks from the service of the documents
11/06/2024 Receipt of the service documents by the competent authority in China
according to the tracking number 04/07/2024 Court’s registry sends an inquiry to the competent Chinese authority
regarding the status of service; no answer from the Chinese authority
received
11/07/2024 Court’s registry informs Applicant about the date of service of the
application to the Chinese authorities (11/06/2024).
23/10/2024 Court’s registry sends another inquiry to the competent Chinese
authority regarding the status of service
24/10/2024 Request from the competent Chinese authority to send the service
documents for these proceedings again by email
08/11/2024 Court’s registry sends the service documents combined with another
request for further feedback on the status of service
18/11/2024 Information from the competent Chinese authority that the service
documents have been submitted to the Supreme Court for further
process. Since then, the Unifies Patent Court has not received any
notification from the competent Chinese authority.
09/12/2024 Order of the Court declaring good service of the application for interim
measures pursuant to Rule 275.2 RoP (App_64018/2024)
09/01/2025 Court renders a decision by default; the decision by default is published
on the Court’s website with the names of the parties and the file number,
so that the decision can be found under the decisions published on the
website

REQUEST
The Applicant has made the following requests concerning service of the decision by
default:
I. The steps ordered to bring the decision by default in the proceedings
ACT_597609/2023 to the attention of the Defendant constitute good
service pursuant to R. 275.2 RoP.
II. The order according to item I. is published on the Court’s website with the
names of the parties and the file number, so that the order can be found
under the decisions published on the website.

GROUNDS FOR THE ORDER
According to the case law of the Court of Justice of the European Union (ECJ C-
222/84) the guarantee of effective legal protection is a general principle of law that
underlies the common constitutional traditions of the Member States and is reflected
in Articles 6 and 13 of the ECHR. Effective legal protection means that an existing
legal claim can be enforced in court. It would be incompatible with the principle of
effective legal protection if the enforcement of an existing legal claim could fail
because a court order cannot be served.
Consequently, neither the ordering nor the enforcement of provisional measures under
Article 62 UPCA can be frustrated by the fact that an application for a preliminary
injunction or a court order issued in accordance with such an application cannot be
served. The rules on service in the Rules of Procedure must be interpreted in
accordance with the principle of effective legal protection. It must therefore always be
possible to establish good service, at least in accordance with Rule 275.2 of the Rules
of Procedure.
1. New service attempt under Rule 274 not required
The court states that service of the application for a preliminary injunction could
not be effected under Rule 274, so that an order under Rule 275.2 had to be
issued in respect of the service of the application for provisional measures (see
App_64018/2024).
Service of the application for provisional measures with the assistance of the
competent Chinese authority was unsuccessful, although the application could
be served on the competent Chinese authority by post and the court registry was
in e-mail contact with the competent Chinese authority on this matter. However,
the Chinese authority did not process the service for more than six months
without any apparent reason. The Chinese authority thus seriously and
definitively refused service. Under the Hague Service Convention, it is not at the
sole discretion of the Chinese authority to decide whether or not to forward a duly
completed request for service to the defendant. Otherwise, the Chinese authority
would be able to determine whether or not the UPC could issue an order.
Pursuant to Rule 6.1 RoP, the decision by default must also be served. However,
where it has not been possible to serve the application for a provisional measure
in accordance with Rule 274 of the Rules of Procedure and where there is no
indication that the decision by default, which is issued subsequently in the same
proceedings, can be served in accordance with Rule 274 of the Rules of
Procedure, it is not necessary to attempt to serve the decision by default in
accordance with Rule 274 of the Rules of Procedure before an order is made
under Rule 275.2 of the Rules of Procedure. It is not compatible with the principle
of effective judicial protection to force a claimant or even the court to take steps
to effect service which are clearly futile. This is particularly true in proceedings
for interim relief. Service of the judgment by default in accordance with Rules
270-274 of the Rules of Procedure must be regarded as impossible.
2. Alternative attempt of service under Rule 275.1 RoP
If service in accordance with Rules 270-274 RoP is to be considered impossible,
an attempt must be made, if possible, to effect service by an alternative method
or at an alternative place (Rule 275.1 RoP). Rule 275.1 RoP also applies if the
foreign authority refuses service seriously and definitively.
The Rules of Procedure do not provide for an exception to the requirement of
alternative service (Rule 275.1 RoP). Such an exception would also not be in line
with the apparent intention of the provisions on service to exhaust all available
options to give the defendant the opportunity to take note of the application and
to defend himself (LD Mannheim UPC_CFI_219/2023). In view of this, it seems
inappropriate to penalize the defendant by not making further service attempts if
the foreign authority refuses service in violation of the Hague Service
Convention.
However, a prerequisite for further attempts to effect service is that such attempts
are possible in the first place. To qualify as an alternative method of service (Rule
275.1 RoP), the method must be factually and legally possible. An alternative
method of service can only be dispensed with if there is no legally and factually
possible alternative method of service.
a. Service at another place is also not possible. No other place is known where
the decision could be served.
b. Service by an alternative method
Both the applicant and the court have tried unsuccessfully to effect service of the
application for a provisional measures both formally and informally.
There are no other admissible alternative means of service of the default
judgment; in particular, China has objected to judicial documents being sent
directly to persons in China by post (Article 10(a) of the Hague Service
Convention; see UPC_CoA_69/2024).
The only way to bring the decision to the attention of the defendant is to publish
it on the UPC website and to notify the defendant of this publication by e-mail
(andy-long@joy-fit.cn). Both parties to the dispute actively corresponded via this
e-mail address prior to the proceedings.
In this context, reference is made to Rule 275.4 of the Rules of Procedure, which
does not allow for an alternative method of service to be ordered which allows
service in a manner contrary to the law of the State in which service is to be
effected. The Court does not know, nor could it reasonably be expected to know
in an interim relief proceeding, whether other methods of service, such as service
by publication (a method provided for, for example, by German national law but
not by the RoP), are compatible with Chinese law. However, the court currently
has no reason to believe that an order for public notice - for example, via a
website - would be inconsistent with Chinese law.
3. Confirmation of good service
On the assumption that the rules of service of the Rules of Procedure must be
interpreted in accordance with the principle of effective judicial protection, and
that it must always be possible to establish good service under Rule 275.2 of the
Rules of Procedure, the Court declares that the publication of the decision on the
Court's website, of which the defendant had been notified by e-mail at andy-
long@joy-fit.cn, constitutes good service.

Order
1. The publication of the decision by default in ACT_597609/2023 dated
09/01/2025 on the Court’s website with the names of the parties and the file
number, so that the order can be found under the decisions published on the
website, constitutes good service pursuant to Rule 275.2 RoP.
2. Service of the decision by default shall be deemed effective as of the date of
this order.
3. The Registry shall publish this order (including the names of the parties and
the file number) on the Court’s website.