1. Key takeaways
An appeal against a decision of the judge rapporteur can be admissible if it is the subject of the appeal whether the judge rapporteur was entitled to issue the decision under appeal.
R 220.3 RoP provides for the admission of an appeal against an order issued by a panel. However, the order under appeal was issued by the judge rapporteur. Principally, according to R 333.1 RoP such an order is to be reviewed, upon request, by the panel. In the instant case, the question on appeal is precisely whether the judge rapporteur was entitled to decide on the admissibility of the appellants' application for review under R 333.1 RoP or whether the panel should have decided, which would have required a decision by the panel under R 333.5 RoP. Therefore, the lack of an order or decision issued by the panel cannot lead to the inadmissibility of the application under R 220.3 RoP.
The power to deal with the admissibility of an application under R 333 RoP is reserved exclusively for the panel.
R 333.4 RoP expressly provides that the panel decides on the application for review. It is therefore an "act" which, according to R 1.2 RoP, is reserved exclusively for the panel. This also applies to the decision whether an application under R 333.1 RoP is admissible. In absence of a specific provision on the compentence of the judge rapporteur to decide on the admissibility of an application under R 333.1 RoP, this decision is also reserved exclusively for the panel.
The information provided under R 20.2 RoP is based on a case management decision within the meaning of R 333.1 RoP and is, thus, subject to an Application for review by the panel.
The granting and rejection of an objection can be subject to a review under R 333.1 RoP if case management decisions or orders are at issue.
If an objection is rejected, the judge rapporteur may allow an appeal and his order may be challenged on appeal without the need for prior review by the panel under R 333.1 RoP. If the appeal is allowed, the losing party has the choice of either appealing or filing an application for review under R 333.1 RoP. If the judge rapporteur has not allowed the appeal, the party may request a review by the panel. An appeal may then be lodged against the decision of the panel if the panel has allowed the appeal in accordance with R 220.2 RoP, otherwise it may be made the subject of an application for a discretionary review in accordance with R 220.3 RoP.
A request for discretionary review has to include already the relevant facts, the means of evidence and the legal submissions to conduct the appeal proceedings (R 220.3, R. 221.2 RoP).
The standing judge or the panel can request that the parties lodge further written submissions. However, this will not always be neccessary.
2. Division
Court of Appeal
3. UPC number
UPC_CoA_486/2023
4. Type of proceedings
Discretionary review
5. Parties
Netgear Inc., Netgear Deutschland GmbH, Netgear International Limited
Huawei Technologies Co. Ltd.
6. Patent(s)
EP 3 611 989
7. Jurisdictions
Place jurisdictions
8. Body of legislation / Rules
Rule 220. RoP, Rule 221.2 RoP, Rule 333 RoP, Rule 20.2 RoP
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