Central Division
Paris Seat

ORDER
of the Court of First Instance of the Unified Patent Court
Central division (Paris seat)
issued on 12 December 2024
concerning the generic procedural application No. App_64780/2024
UPC_CFI_164/2024

HEADNOTE:
1. The Court’s capacity to grant leave to appeal is as an exception to the general principal according
to which orders other than those referred to in Articles 49 (5), 59, 60, 61, 62 or 67 ‘UPCA’ and
Rule 97 (5) ‘RoP’ may only be reviewed together with the appeal against the final decision.
2. In exercising its discretionary power on the request to grant leave to appeal, the Court must
consider whether the order involves legal issues which are the subject of different
interpretations by the Unified Patent Court judges and whether an appeal on the order would
serve a concrete interest of the parties.

KEYWORDS:
Leave to appeal

APPLICANT:
Microsoft Corporation - One Microsoft Way, Redmond Washington
98052-6399, USA
represented by Tilman Müller-Stoy, Bardehle Pagenberg

RESPONDENT:
Suinno Mobile & AI Technologies Licensing Oy - Fabianinkatu 21, 00130 Helsinki, Finland
represented by

PATENT AT ISSUE:
European patent n° EP 2 671 173

PANEL:
Panel 2
Paolo Catallozzi Presiding judge and judge-rapporteur
Tatyana Zhilova Legally qualified judge
Wiem Samoud Technically qualified judge

DECIDING JUDGE:
This order has been issued by the panel.

SUMMARY OF FACTS AND PARTIES’ REQUESTS
1. On 10 October 2024 the respondent, claimant in the infringement action brought against the
respondent before this Central Division, filed, pursuant to Rule 263 of the Rules of Procedure
(‘RoP’), an application (registered as No. App_55394/2024) for leave “to change claim or to
amend case” with regard to the amount of the damages sought which were therein estimated
at a reduced sum of 2 mln. euros, requesting also the Court to re-consider fees already paid.
2. By order issued 26 November 2024 (ORD_62739/2024) the panel, having heard the applicant,
granted the respondent leave to change the claim reducing the request for damages to € 2 mln.
and rejected the request to re-consider the fees already paid.
3. On 6 December 2024 the applicant requested that the panel grants leave to appeal this order,
arguing that the leave to appeal would clarify the scope and limits of the Court’s powers in
interpreting a party’s request pursuant to Art. 76 (1) of the Unified Patent Court Agreement
(‘UPCA’) and, subsequently, the admissible scope of an application pursuant to Rule 263 of the
Rules of Procedures (‘RoP’), as a matter of general procedural importance.

GROUNDS FOR THE ORDER
4. According to Article 73 (2) (b) ‘UPCA’ and Rule 220 (2) ‘RoP’ orders other than those referred to
in Articles 49 (5), 59 to 62 and 67 ‘UPCA’ and Rule 97 (5) ‘RoP’, may be either appealed together
with the appeal against the decision or, with the leave of the Court of First Instance, within 15
days of service of the Court’s decision to that effect.
5. The Court’s capacity to grant leave to appeal must be seen as an exception to the general
principal according to which orders may only be reviewed together with the appeal against the
final decision and only under the condition that the party adversely affected by the order is also
adversely affected by the final decision. The rationale behind that principle is that such orders
have generally a less significant impact on the parties’ interests and that it is yet unclear whether
it will ultimately prejudice any party, as their relevance to the final decision remains unclear.
6. Against this background, granting leave to appeal serves the purpose of favouring the
harmonization of the interpretation of the relevant statutory provisions within the Unified
Patent Court by letting the Court of Appeal address the controversial issue.
7. Therefore, in exercising its discretionary power on the request to grant leave to appeal, the
panel must consider whether the order involves legal issues which are the subject of different
interpretations by the Divisions of the Unified Patent Court (or among the panels of these
Divisions) and, as such, need to be decided by the Court of Appeal. In this regard the panel must
be guided by the principles set forth in Preamble of the Rules of Procedures and, in particular,
by the principles of proportionality and efficiency of the proceedings, which are contrary to
procedural actions that do not serve a concrete interest of the parties.
8. The applicant argues that the panel’s interpretation of the claim filed by the respondent
pursuant to Rule 263 ‘RoP’ is not correct, as the respondent’s request in reality is for a reduction
of the value of the case.
9. From the aforementioned considerations, the panel notes that the issue raised by the applicant
is not the subject of different interpretations by Unified Patent Court judges and, anyway, is not
able to affect the final decision on the merits that the Court shall issue.
10. For these reasons the application must be rejected.

ORDER
The panel,
having reviewed the application,
rejects Microsoft Corporation’s request to grants leave to appeal the order ORD_62739/2024
issued on 26 November 2024.

Issued on 12 December 2024

ORDER DETAILS
Order no. ORD_65604/2024 in ACTION NUMBER: ACT_18406/2024
UPC number: UPC_CFI_164/2024
Action type: Infringement Action
Related proceeding no. Application No.: 64780/2024
Application Type: Generic procedural Application