Microsoft v Suinno (UPC_CoA_363/2025)
Decision date:
21 August 2025
Osborne Clarke summary
- Suinno brought an infringement claim against Microsoft in the Paris CD. In response, Microsoft filed a request for security for costs, which the Paris CD ordered. When Suinno did not pay, Microsoft sought a decision by default under Rules 355 and 158.5 RoP, requesting that the Paris CD include a Rule 356.3 notice (that any further default decision would be final). The Paris CD rejected that request and refused leave to appeal.
- Microsoft filed a request for discretionary review to the Court of Appeal, which was allowed by the standing judge under Rule 220.4 RoP. Microsoft's review request did not seek a Rule 356.3 RoP notice. After hearing the parties, the Court of Appeal revoked the Paris CD's order and issued a decision by default against Suinno.
- Microsoft subsequently applied under Rule 353 RoP to “rectify” the Court of Appeal’s decision by supplementing it with a Rule 356.3 notice, or alternatively to issue such a notice in a separate order. Suinno opposed, maintaining that no such notice had been requested or argued in the appeal.
- Although Microsoft's rectification application was admissible as it was brought within the one month time limit, it was not well founded and was therefore rejected. The Court of Appeal held the rectification under Rule 353 is confined to clerical mistakes, errors in calculation and obvious slips. Substantive changes or additions fall outside its scope. Under Article 76(1) UPCA and Rules 220.3, 222.1, 225 and 226 RoP, the Court is bound by the subject‑matter defined by the parties’ requests; it may not award more than is requested.
- Because Microsoft’s discretionary review request did not include a Rule 356.3 RoP notice, that issue was not part of the appeal’s subject‑matter. Adding such a notice post‑decision would not be rectifying an “obvious slip” but expanding the relief granted, which Rule 353 RoP does not permit. As a general rule, any request to include a Rule 356.3 RoP notice must be made in the proceedings concerning the decision by default. Microsoft identified no facts justifying an exception.
- As such, the Court of Appeal dismissed Microsoft’s application for rectification and its alternative request for a separate order.
Issue
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