Discretionary Review and the Limits of Appellate Micromanagement at the UPC
The Court of Appeal clarifies that discretionary review under Rule 220.3 RoP cannot be used to force a local division to formally dismiss claims when the underlying jurisdictional question has already been resolved.
The boundaries of the Unified Patent Court's jurisdiction over non-contracting states have been sharply contested since the Court's opening, culminating in the Court of Appeal's recent determination that Article 7(2) of the Brussels I bis Regulation cannot anchor claims for foreign infringement. Yet, as the standing judge's order in UPC_CoA_35/2026 demonstrates, resolving the substantive jurisdictional question does not automatically tidy up the procedural wake left behind at the Court of First Instance.
The boilerplate appeal instruction
The dispute arose after KEEEX SAS initiated an infringement action at the Paris local division against Adobe and several co-defendants over EP 2 949 070. Adobe filed a request under Rule 334(h) RoP seeking the summary rejection of all claims relating to alleged infringement in non-contracting states (specifically Ireland, Norway, Poland, Spain, Switzerland, and the UK).
After the judge-rapporteur rejected the request, the local division upheld that rejection under Rule 333 RoP. Crucially, the local division's order concluded with a standard statement that it "is susceptible to an appeal under the conditions provided by R. 220.2 RoP".
The standing judge confirmed that this boilerplate text is merely a simple formula of a general nature derived from a court template (reasons 12). It serves an informational purpose but does not explicitly authorise an appeal. Consequently, Adobe's path to the Court of Appeal correctly lay through a request for discretionary review under Rule 220.3 RoP.
Jurisdictional clarity renders the request moot
While Adobe's discretionary review was pending, the Court of Appeal issued its 13 March 2026 orders in parallel proceedings between the same parties. Those orders definitively established that when the Unified Patent Court's jurisdiction relies on Article 7(2) of Regulation 1215/2012, this provision does not give it jurisdiction to hear infringement committed in non-contracting states of the UPC (reasons 14).
Prompted by the standing judge to explain why their discretionary review was still necessary, Adobe argued that the Court of Appeal had not formally rejected the specific claims in the statement of claim, and the Paris local division remained seized of them. They wanted an appellate order formally dismissing those claims under Rule 334(h) RoP.
The standing judge dismissed this argument, holding that the request had become entirely moot. The scope of the prior appellate order was clear: lacking jurisdiction, the Court must declare itself incompetent.
No fundamental question of law remains
For a discretionary review to be granted under Rule 220.3 RoP, the contested order must be manifestly erroneous and raise a fundamental question of law requiring consistent interpretation.
Adobe attempted to frame the issue as a need for uniform application of Rule 334(h) RoP across local divisions. The standing judge rejected this, noting an absence of any evidence that different divisions were adopting fundamentally different approaches to their discretionary powers, or that the Paris local division had misunderstood the rule's requirements (reasons 17).
More fundamentally, the standing judge refused to entertain the assumption that the local division would ignore binding appellate precedent. Correctly applying the Court of Appeal's established jurisprudence in a specific case is not a fundamental question of law having general scope (reasons 16).
Practical implications
This order provides clear boundaries for appellate procedure at the Unified Patent Court:
- Standard template language referencing Rule 220.2 RoP at the end of a first-instance order is not a substitute for explicit leave to appeal.
- The Court of Appeal expects local divisions to dutifully apply its jurisdictional rulings without requiring a separate, redundant appellate order to formally strike out specific claims at the first instance.
- Discretionary review cannot be used to micromanage a local division's docket clearing. Once the underlying legal question has been definitively resolved by the Court of Appeal, subsequent procedural requests concerning the exact same issue will be dismissed as moot.