Key takeaways
Re-establishment of rights (R. 320.1 RoP) requires showing that appeal deadlines were missed despite all due care due to reasons beyond control.
- Under Rule 320.1 RoP, a party may obtain re-establishment of rights if it missed a statutory deadline despite exercising all due care required by the circumstances. The applicant must demonstrate that the failure resulted from an obstacle beyond its control and led directly to the loss of a right or legal remedy.
Legal standing to appeal (R. 220.1 RoP) is uncertain where a court leaves an infringement-conditioned revocation counterclaim undecided without examining its merits.
- Under Rule 220.1 RoP, an appeal requires the appellant to be adversely affected. Where the court of first instance dismissed the infringement claim and left the defendant’s conditional revocation counterclaim undecided—merely imposing costs for an unnecessary action—it was legally uncertain whether that defendant had standing to file an independent appeal.
Unforeseeable appellate case law clarifying appeal requirements after deadline expiry constitutes a cause beyond control (R. 320.1 RoP), excusing missed deadlines under R. 224 RoP.
- The defendant reasonably assumed it could pursue revocation defensively via a response or cross-appeal under Rule 237 RoP. The requirement to lodge an independent appeal was clarified only after both the appeal period (Rule 224.1(a) RoP) and the grounds period (Rule 224.2(a) RoP) had expired, establishing an excusable cause beyond control.
Restitutio in integrum requires timely application and fee payment (R. 320.2 RoP) alongside performing the omitted acts within one month (R. 320.4 RoP).
- Under Rule 320.2 RoP, the application must be filed and the prescribed fee paid within one month of removing the obstacle. Under Rule 320.4 RoP, the applicant must simultaneously complete the omitted procedural acts—here, lodging both the notice of appeal and statement of grounds of appeal—within that same period.
Division
Court of Appeal, Luxembourg
UPC number
UPC-CoA-140/2026
Type of proceedings
Application for re-establishment of rights (restitutio in integrum, Rule 320 RoP) in appeal proceedings
Parties
Applicants / Conditional Appellants (Defendants and Counterclaimants in first instance):
- NVIDIA Corporation
- NVIDIA GmbH
vs.
Respondents (Claimants and Counter-defendants in first instance):
- BF exaQC AG
- ParTec AG
Patent(s)
EP 3 743 812
Jurisdictions
UPC
Body of legislation / Rules
Rule 220.1 RoP
Rule 224.1(a) RoP
Rule 224.2(a) RoP
Rule 237 RoP
Rule 320.1 RoP
Rule 320.2 RoP
Rule 320.4 RoP
Part 6 RoP
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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