Volkswagen AG v. Network System Technologies LLC., Order of the Court of Appeal of the Unified Patent Court, 18 September 2024
Preliminary objection, request for an order pursuant to R.361 RoP (action manifestly bound to fail)
Headnote:
– Proceedings under R.361 RoP should not result in a full exchange of arguments and evidence, but – as is clear from the use of the word ‘manifestly’ – must be reserved for clear-cut cases.
– Even though the UPC procedure is a front-loaded system, it is not required that the claimant envisages every possible line of defence and includes all arguments, facts and evidence in and submits it with the Statement of claim and that nothing could ever be added thereafter. This may in particular be the case when the claimant, after having made an argument in its Statement of claim, further substantiates this argument in its Statement under R.29(a) or (b) RoP, in reply to a defence to the initial argument brought forward by the defendant in its Statement of defence.
– The question of whether any claim has been sufficiently argued and substantiated in the Statement of claim is not a matter to decide under R.361 RoP. Whether claims have been sufficiently stated, substantiated and if required proven is for the Court of First Instance to decide in the main proceedings after full consideration of all (further) submissions and evidence.
– A Statement of claim that sets out in detail why one infringing embodiment, that is taken as an example, infringes the patent and that includes a list setting out further embodiments with a similar structure that are infringing for (essentially) the same reasons, does not with respect to the embodiments included in that list result in an action that is manifestly lacking any foundation in law as meant in R.361 RoP.
The entire order can be read here.
