Preliminary Objections Before The UPC: A Clear Boundary Between Jurisdiction And Substance

What do the Rules of Procedure of the Unified Patent Court stipulate about raising a preliminary objection and providing a response to such objections? Sofiane Belhadj-Kacem provides the answer in the context of a recent dispute between REEL International and Fives ECL. 

By raising a preliminary objection, the defendant was trying a classic manoeuvre. The aim was to contest the plaintiff's interest in bringing proceedings and invoke the authority of res judicata resulting from German decisions. Implicitly, a strategy appears. Obtain a quick dismissal and avoid the entire procedure on the merits. 

The defendant is trying a classic manoeuvre. He raises a preliminary objection. The aim was to contest the plaintiff's interest in bringing proceedings and invoke the authority of res judicata resulting from German decisions. Implicitly, a strategy appears. Obtain a quick dismissal and avoid the entire procedure on the merits. The court refused. Clearly. 

Preliminary objections and the UPC Rules of Procedure

In its refusal, the court relied on Rule 19.1 of the Rules of Procedure. The text is clear. Only in three cases is it possible to file a preliminary objection: jurisdiction of the court, jurisdiction of the division, and language of the proceedings. Nothing more, the list is closed (cf. §16).

Therefore, the reasoning follows. Interest in bringing proceedings and res judicata have no direct connection with the jurisdiction of the court, division or language. Immediate conclusion: these grounds do not fall within the scope of the preliminary objection.

The distinction becomes structuring:

• On the one hand, competence. This is decided early, quickly.
• On the other hand, the right to act and the merits. Jurisdiction requires a complete examination, with facts, law, and evidence. It is impossible to reduce it to a procedural filter.
   

In this case, the judge insisted. REEL International's interest in bringing proceedings depends on several factors. Its position as a parent company, the proceedings against its subsidiary, the economic impacts... Nothing obvious. Nothing is decided in advance. The same logic applies to res judicata. The identity of the parties is debatable. The scope of the German decisions, too. The debate remains open.

The defendant then proposes an alternative: to address these issues before the merits by requesting an order under Articles 361 and 362 UPC Rules of Procedure, or by separating the proceedings by organising a dedicated hearing. Again, refusal.

The judge favours a different logic – a single hearing, a single time – invoking efficiency and speed to meet the requirements of procedural economy. The UPC is aiming for a decision within one year. Multiplying the steps slows down, and fragmenting complicates. The message then seems clear; grouping simplifies it.

This position is not isolated. It is part of a consistent line of jurisprudence, as indicated in the decision by citing the judgment of the Court of Appeals, Roku/Sun, UPC_CoA_288/2025. The UPC strictly regulates procedural incidents. It limits their use and avoids detours.

The consequences are concrete. For the defendants, the path is narrowing. It is impossible to dismiss an action for annulment by a preliminary objection based on admissibility. We have to get to the bottom of it, argue fully. For applicants, security increases: the risk of early rejection decreases.

In the end, the decision clarifies the procedure. The preliminary objection retains a specific role: to deal with competence. Nothing else. The rest (interest in bringing proceedings, res judicata) belongs to the heart of the dispute, where the debate must take place.