expert e-Commerce v Seoul Viosys (UPC_CoA_380/2025)
Decision date:
20 August 2025
Osborne Clarke summary
- Seoul Viosys (SV) brought an infringement action against two expert entities in the Düsseldorf LD. expert counterclaimed for revocation. On 10 October 2024, the Düsseldorf LD declared the patent invalid, revoking it for the territories of Germany, France, Italy and the Netherlands. SV's requests for amendment were dismissed, along with its infringement action. SV was ordered to pay expert's costs.
- On 12 December 2024, expert applied for a cost decision for the infringement proceedings and the revocation counterclaim, requesting €111,000 under the separate UPC costs procedure (Rules 150-156 RoP). The Düsseldorf LD dismissed the application as inadmissible for missing the one‑month deadline in Rule 151.1 RoP, which ran from service of the merits decision on 10 October 2024.
- expert subsequently sought leave to appeal, including requesting a preliminary ruling from the CJEU, arguing that Rule 151 RoP unlawfully restricts the right to costs under Article 69 UPCA, which conflicts with Articles 47 and 17 of the Charter of Fundamental Rights of the EU and national limitation concepts, and that extensions under Rule 9 RoP (including retroactively) should be available.
- The Court of Appeal's standing judge confirmed that the Rule 151 RoP one‑month period is "materially preclusive": once expired, the right to seek a cost decision lapses and cannot be rescued by Rule 9 RoP. Failure to meet the time limit for an application for a costs decision under Rule 151.1 can only be remedied through re-establishment of rights pursuant to Rule 320 RoP.
- On the CJEU referral requests, the standing judge held the UPC cannot seek interpretation of the UPCA (an international agreement) or the RoP (procedural rules akin to national law) from the CJEU. Any reference must concern EU law only. Article 69 UPCA implements Article 14 of the Enforcement Directive, which is silent on time‑limits; the real issue was the UPC’s own one‑month rule.
- Applying established EU principles of procedural autonomy, equivalence and effectiveness, the Court of Appeal's standing judge found that a clear, service‑triggered one‑month deadline, coupled with a re‑establishment safety valve, did not make exercising EU‑derived rights impossible or excessively difficult. There was no reasonable doubt to justify a reference and the requests were refused.
- Leave to appeal was denied and the Düsseldorf LD's dismissal of the late costs application was upheld.
Issue
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