UPC service abroad sparks consensus between opposing parties at Mannheim Local Division

Introduction

From the Unified Patent Court’s (UPC) inception, serving pleading on parties outside of the EU has been known to throw a spanner or two into the procedural mechanism, regularly triggering unpredictable and potentially lengthy delays. Two recent decisions made by the Mannheim Local Division use consensus between claimants and defendants to reduce delays.

Background

In actions involving more than one defendant, it is desirable to harmonise the time regime applicable to all of the defendants. Different dates of service of initial pleadings on different defendants, however, prevent such harmonisations, with submission deadlines for parties often being misaligned by long time periods, at times in the order of weeks or months if defendants outside of the EU are concerned. 

Decision 1 – Powermat v Anker and Fantasia

UPC_CFI_197/2025 of 30 April 2025 involved a number of Defendants mostly sharing the name Anker, with predominantly international business addresses including one in Munich. A uniform service date for all Defendants was requested, which would constitute an extension in at least one instance. A body of UPC case law, including the Dolby v HP precedent (UPC_CFI_197/2025 of 19 January 2024), establishes that time extensions should be awarded “with caution and only in justified exceptional cases” (emphasis added) in the context of the “strict time limit regime” set out by the UPC’s Rules of Procedure (RoP) which are intended “to ensure that proceedings are conducted as quickly as possible”. 

Service of the Statement of Claim had been, at the time of the hearing, effected to only the local Defendant (on 26 April 2025). Meanwhile, all Parties to the proceedings had agreed to request a slight extension of the deadline for the local Defendants’ response (as implemented by at least R19, R23 RoP) and synchronised procedural time limits by obtaining a uniform service date (of 30 April 2025). Their presented intention was to eliminate the need for service abroad and associated translations. To further facilitate this aim, the Defendants stated upfront they’d effectively agreed on a common UPC representative.

Judge-rapporteur Böttcher reasoned that whilst the Parties were free to mutually agree on a fixed date in place of an actual service date for those Defendants who had not yet been served the Statement of Claim, an extension of time would need to be sought for the Defendant to which service had already been effected. 

It was stated that with “service abroad” and “without a uniform time regime”, different periods “would apply in individual procedural relationships throughout the entire written procedure”. It is understood that in this hypothetical scenario, the management of proceedings would have been relatively more difficult, protracted and costly, which may well have been undesirable for all Parties.  

Outcome 1

The date of service of the Statement of Claim was uniformly set (to 30 April 2025) for all Defendants, by way of procedural order for the international Defendants, and by way of a slight (+4 day) time extension for the Germany-based Defendant. This was found to be justified by the “consent of all parties” in agreeing to the uniform regime put forward. Whilst the Parties had submitted that the time required for preparing translations should also be considered, the Judge-rapporteur didn’t specifically comment on the persuasiveness of these arguments. 

Decision 2 – Malikie Innovations v Discord

UPC_CFI_79/2025 of 19-May-2025 involved two Defendants, one based in the Netherlands and one in the US. Much as with Decision 1, the motivation for the hearing was to harmonise procedural time periods for the Defendants. Whilst service abroad to each Defendant was successfully completed by the day of the hearing, there was a disparity of just over 2 months between the respective dates of service (2 March 2025, and 13 May 2025).

All Parties to the proceedings sought a uniform time limit regime (including to adjust the deadlines implemented by R23, R25 RoP). Just as in Decision 1, this was essentially called out by the same Judge-rapporteur Böttcher as being sub-optimal for the Parties.  

Outcome 2

Judge-rapporteur Böttcher approved the deadline change (± 1 month, to coincide on 2 July 2025) for lodging the Statement of Defence (and Counterclaim for Revocation) for all Defendants, by way of time period extension for the Netherlands-based Defendant, and time period reduction for the US-based Defendant. All Parties agreed to the new, uniform regime put forward, which again was a decisive factor in justifying the decision. A common representative for the Defendants already existed. 

Another influencing factor in Decision 2 may have been the apparent objective fairness of setting the new deadline to fall almost exactly mid-way between the old, disparate deadlines, as requested by the Parties. On further analysis, whilst this length of adjustment does indeed seem instinctively appropriate, it is possible the US-based Defendant would have learned of the contents of the Statement of Claim through another channel before the recorded date of service, so perhaps this was a generous award for the Defendants overall, albeit one not without foreseeable benefit to the Claimant, too. 

Comparison

Whilst Decision 1 involved a larger group of Defendants, Decision 2 involved just two. It is suggested that where even one Defendant is based outside the Division’s host country, a change in time limit may be found justified, irrespective of, for example, an official language of the foreign country in question is the same as the language of proceedings. 

Important commonalities between Decisions 1 and 2 can thus be summarised as including:

• a uniform time period regime is sought through reasonable time adjustment;
• with the consent of all Parties; 
• where one or more Defendant(s) is/are situated outside of the EU. 

Conclusion

Mutual, material factors of note in Decisions 1 and 2 was the Claimants’ consent to the uniform time regimes put forward by the Defendants and the common representation of the Defendants. This trend, if continued, could help more firmly establish an era where Parties cooperate towards a shared goal of reducing not only the risk of protracted delays, but also the risk of complex rebuttals such as of the type previously brought (see our report here) before the Mannheim Local Division, rooted in the need to serve on defendants outside of the EU.