UPC Court of Appeal
UPC_CoA_44/2024
APL_5395/2024
APP_7580/2023

ORDER
of the Court of Appeal of the Unified Patent Court issued on 22 February 2024
concerning a request (APP_7580/2024) for shortening of a time period
pursuant to R.225(e), R.9.3(b) Rules of Procedure (expedition of the appeal)

HEADNOTES:
In an appeal against an order pursuant to Rule 302.1 RoP, a request by the Applicants applied for on the last day of the time periods under R. 224.1(b) and R.224.2(b) RoP for shortening of a time period pursuant to R.9.3 (b) RoP for lodging the Statement of response has been dismissed in view of the interests of the Respondent and principles of due process, , even though this could mean that in the proceedings before the Court of First Instance the Statement of defense has to be lodged before a decision in the appeal proceedings has been rendered.

KEYWORDS:
Expedition of the appeal, R.225 (e), R.9.3 (b) RoP

APPLICANTS/APPELLANTS/DEFENDANTS IN THE MAIN PROCEEDINGS BEFORE THE COURT OF FIRST INSTANCE:
Netgear Inc.
Netgear Deutschland GmbH
Netgear International Limited
Hereinafter also jointly referred to as: Netgear (in singular),
represented by: Rechtsanwalt Dr Stephan Dorn, Freshfields Bruckhaus Deringer Rechtsanwälte, Düsseldorf
RESPONDENT/ /CLAIMANT IN THE MAIN PROCEEDINGS BEFORE THE COURT OF FIRST INSTANCE
Huawei Technologies Co. Ltd
Hereinafter also referred to as Huawei,
represented by: Rechtsanwalt Dr Tobias J. Hessel, Clifford Chance, Düsseldorf

LANGUAGE OF THE PROCEEDINGS:
German

PATENTS AT ISSUE
EP 3611989
EP 3678321

PANEL
Second Panel

DECIDING JUDGES:
This order has been adopted by
Rian Kalden, Presiding judge and judge rapporteur
Ingeborg Simonsson, legally qualified judge
Patricia Rombach, legally qualified judge

IMPUGNED ORDER OF THE COURT OF FIRST INSTANCE
□ Date: 23 January 2024; ORD_593106/2023 (panel) following preliminary order 593105/2023 (judge rapporteur) in the main action ACT_459771/2023)
□ Action number attributed by the Court of First Instance: UPC_CFI_9/2023

SUMMARY OF FACTS
In the impugned order, the panel of the Court of First Instance of the Local Division Munich ordered that the action based on European patent 3678321 shall be separated from the main action pursuant to Rule 302.1 RoP.

INDICATION OF PARTIES’ REQUESTS
Netgear has appealed the order and, in the main proceeding before the Court of Appeal, APL_5395/2024, requests that the Court of Appeal [the requests under 1, 2 and 4 are the subject of APP_7573/2024 in APL_4881/2023, UPC_CoA_36/2024]:
1. annul the order of the Local Division Munich ORD_597550/2023 (in proceedings APP_595631/2023), as well as the order of the Judge-Rapporteur of the Local Division Munich ORD_589178/2023 (in proceedings APP_587438/2023),
2. reject the Huawei’s application for admission of the extension of the action of 23 November 2023,
3. annul the order of the Munich Local Division ORD_593106/2023 (in proceedings ORD_593105/2023) to separate the subject matter of the extension of the action;
4. in the alternative, in the event that the Court of Appeal assumes the admissibility of the extension of the action, to order a reasonable time limit for the appellants' defense, which allows the appellants to assert all intended defenses to which they would be entitled against a new action, also against the subject matter of the extension of the action;
5. to order the expedition of the appeal proceedings concerning applications for leave to appeal 1 to 4 pursuant to R.225(e) in conjunction with R.9.3(b) RoP and to shorten the time limits for commenting in these appeal proceedings at the discretion of the Court of Appeal [as per APP_7580/2024].
Netgear argues that it has an urgent interest and it states: ‘the Local Division Munich assumes that the time limit for filing a defense will expire on 11 March 2024, i.e. less than five weeks after the filing of this appeal against order ORD_597550/2023. There is therefore concern that, without an acceleration order, a decision by the Court of Appeal on the applications for appeal will not be possible prior to the end of the term for lodging the defense.’ Netgear requests that the term for filing a statement of response is shortened and that a date for the hearing is set promptly.

POINTS AT ISSUE
Request for a shortening of a time period (expedition of the appeal), R.225 (e), R.9.3 (b) RoP GROUNDS FOR THE ORDER
1. The request for a shortening of the time period is admissible.
2. There is no need to consult Huawei about this request.
3. Pursuant to R.224.2 (b) a respondent has 15 days from service of the Statement of grounds of appeal to lodge a Statement of response.
4. R.9.3 (b) empowers the Court to shorten any time period on a reasoned request by a party.
5. Netgear filed the request for expedition of the appeal, at the same time as it lodged the Statement of appeal, containing the grounds of appeal, on 7 February 2023 after business hours, thus having used the full 15 days available under R.224.1(b) and R.224.2(b) RoP.
6. The Court of Appeal is of the opinion that Netgear has with its request insufficiently taken into account the interests of Huawei to be given sufficient time to properly prepare its Statement of response, in proportion to the time Netgear has itself taken to prepare its Statement of grounds of appeal. Allowing the request for expedition of the appeal would be contrary to the principles of proportionality, fairness and equity that the court has to take into account when applying the Rules of Procedure. The Court of Appeal is aware that this could mean that the Statement of defense will have to be lodged in the proceeding before the Court of First Instance before a decision in the appeal proceedings has been rendered, but is of the opinion that under the circumstances at hand – in particular the fact that the term for lodging the statement of defense in respect of the extented claim has been set at three months after the request for claim extention was allowed by the judge rapporteur – the interests of Huawei and the principles of due process outweigh the interests of Netgear.
7. The request for a shortening of the time period for a Statement of response shall be rejected.

ORDER
The request for a shortening of a time period is rejected.

INSTRUCTIONS TO THE PARTIES AND TO THE REGISTRY CONCERNING THE NEXT STEPS
This order closes APP_7580/2024.

Issued on 22 February 2024