A guide to the UPC and the UP - Flipbook - Page 433
a judge-rapporteur. 9 The judge-rapporteur has the same powers of case management as at first
instance. 10
21-08 A party may object to a judge. 11 In this case, a two-step assessment is executed: (i) after
hearing the judge concerned, the presiding judge decides over the admissibility of the
party’s objection in light of art.7(2) UPCA Statute; and (ii) if found admissible, the action
is referred to the Presidium which will also hear the judge concerned and then decide
whether the objection is well founded or not.
Appealable Decisions
Final Decisions of the Court of First Instance and Decisions
Terminating Proceedings against one party
21-09 Any party that has been unsuccessful, in whole or in part, may bring an appeal against
any final decision of the Court of First Instance before the Court of Appeal. 12 There is no
need to seek leave to appeal.
21-10 The Court of Appeal may decide to hear together appeals against separate decisions on
the merits in infringement proceedings and in validity proceedings, 13 thus bringing together
decisions which were previously bifurcated. It was suggested during the public consultation on
the rules that they should be heard together if requested by a party or unless there was a good
reason not to do so. However, there is no such indication in the RoP and therefore it will be at
the discretion of the Court of Appeal whether to order the hearing of the actions together as
part of its case management powers and may depend on timing issues and whether there is
any prejudice caused to one of the parties if its appeal has to be delayed as a consequence.
21-11 In addition, appeals can be brought, without leave to appeal, against decisions terminating
proceedings with respect to one of the parties. 14 Such a scenario may arise in case of the
transfer of a patent during the proceedings. The new proprietor may be substituted for its
legal predecessor and the Court may make orders consequent upon that decision. 15
The decision that a person ceases to be a party terminates that party’s involvement in the
proceedings but may still be appealed. A further situation in which an appeal of this type of
decision could arise is where a person makes an application to intervene in the proceedings,
but having demonstrated the right to intervene, subsequently loses that right, for example,
losing its legal interest in the result and the proceedings are terminated vis à vis
the intervener. 16
21-12 Decisions of the judge-rapporteur allowing a preliminary objection 17 and orders of the panel
to dismiss manifestly inadmissible claims 18 are both also stated to be appealable without
leave to appeal, under r.220(1)(a) RoP, (even though they are not listed in r.220(1)(a) RoP),
presumably because they have the same effect as final decisions of the Court of First Instance. 19
9
10
11
12
13
14
15
16
17
18
19
r.231 RoP.
rr.331 to 340 RoP.
rr.346(1) and (3) RoP in conjunction with art.7(4) UPCA Statute.
art.73(1) UPCA and r.220(1)(a) RoP.
r.220(5) RoP.
r.220(1)(b) RoP.
rr.305(1), (3) and 312(1) RoP.
r.313 RoP.
r.21(1) RoP.
r.363(2) RoP.
In contrast, a decision of the judge-rapporteur rejecting a preliminary objection may only be appealed
with leave to appeal under r.220(2) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 423
