Judicial Silence and the Discretionary Review of Value Determinations
The Court of Appeal clarifies that a local division's failure to respond to a request for leave to appeal within fifteen days constitutes an effective refusal. This triggers the deadline for a discretionary review request.
The Court of Appeal has established that a local division's failure to respond to a timely request for leave to appeal within fifteen days constitutes an effective refusal, thereby opening the door to a request for discretionary review.
Why is the determination of the value in dispute considered a procedural decision?
In UPC_CoA_85/2026, the applicant Speed Care Mineral GmbH challenged a decision by the Local Division Hamburg. Following an infringement action and a subsequent counterclaim for revocation concerning EP 2 077 811, the local division revoked several claims and dismissed the infringement action. In the operative part of its final decision, the panel set the value in dispute for both the infringement action and the counterclaim for revocation at EUR 1,000,000.
Speed Care sought to appeal this valuation. The Court of Appeal first had to classify the nature of the local division's valuation order. The standing judge held that determining the value in dispute is a procedural decision governed by the appellate regime of Rule 220.2 RoP and Rule 220.3 RoP. Crucially, the substantive nature of the order is decisive. The fact that the valuation was embedded in the operative part of a final decision does not transform it into a final decision under Rule 220.1(a) RoP (reasons 17).
How does judicial silence trigger the discretionary review mechanism under Rule 220.3 RoP?
Because the valuation was a procedural order, Speed Care required leave to appeal. The applicant filed a timely request for leave at the Local Division Hamburg within fifteen days of the impugned decision. However, the local division did not react within that fifteen-day window.
Faced with judicial silence, Speed Care lodged a request for discretionary review at the Court of Appeal. The standing judge confirmed this approach was correct. The Court of Appeal held that the absence of a reaction within the 15-day time limit of R. 220.3 RoP following a timely request for leave to appeal within said period, should effectively be regarded as a refusal of leave to appeal (reasons 21).
This pragmatic interpretation prevents a situation where a local division could circumvent an appeal simply by remaining inactive. Treating silence as a refusal allows the applicant to file a request for discretionary review within fifteen days from the end of that initial fifteen-day period.
Why did the Court of Appeal uphold the equal valuation of the counterclaim and the infringement action?
On the merits, Speed Care argued that the local division failed to exercise its discretion properly. The applicant contended that a counterclaim for revocation should carry a higher value than the infringement action due to its erga omnes effect, pointing to the Administrative Committee Guidelines which suggest the counterclaim value may be assumed equal to the infringement action plus up to fifty percent.
The Court of Appeal rejected this argument and found the local division's valuation was not manifestly incorrect. The Guidelines do not contain strict requirements but merely provide a tool for the Court of First Instance. The provision states the value "may be" assumed equal plus "up to" fifty percent, leaving the exact determination to the panel's discretion (reasons 27).
The local division had explicitly considered specific circumstances, including the size of the applicant's company and the short remaining duration of the patent, which expires in July 2027. Given these factors, setting the value of the counterclaim at the same level as the infringement action was a reasonable exercise of discretion (reasons 28).
What must practitioners change when seeking leave to appeal procedural orders?
Litigators must closely monitor the clock when requesting leave to appeal a procedural order under Rule 220.2 RoP. If the Court of First Instance does not issue a decision on the leave request within fifteen days of the impugned order, practitioners cannot afford to wait. They must treat day sixteen as the start of a new fifteen-day deadline to file a request for discretionary review at the Court of Appeal.
Additionally, parties should not automatically expect a fifty percent uplift in the value in dispute for a counterclaim for revocation. The Court of Appeal has made it clear that local divisions have broad discretion to set this value equal to the infringement action, particularly when the patent nears expiration or other specific circumstances justify a lower ceiling for recoverable costs.
Sources
Further Reading
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