UPC_CFI_1568/2025 – Ericsson v Shenzen

Expert Commentary

Leave for appeal Facts 1. On 28 May 2026, the defendants filed a request for leave for appeal of an order of the Judge-Rapporteur (“JR”) with respect to R. 202 RoP of 13 May 2026, in which the JR decided to refer the decision with respect to a preliminary objection to the main proceedings. 2. A second request for leave for appeal of an order with respect to the confidentiality regime was filed on the last day of a 15-day period. The JR 1. The JR questions whether the request is filed timely. 2. If filed timely, the request with respect to the PO is denied for the reasons already explained in the order. 3. Leave for appeal is granted with respect to the order about the confidentiality regime. Comment 1. The JR concluded from a decision of the Court of Appeal that if no leave for appeal by the Local Division is given during 15 days after an order, this had to be considered as a refusal that the period for asking leave for appeal is 15 days. 2. R. 221.1 RoP states that an order can be appealed if leave for appeal is granted within 15 days of the service of the order. 3. It is logical that the Court of Appeal has decided that if leave has been requested but not granted before the expiry, this has to be seen as a refusal, as R. 222.1 RoP is clear, and in that case no leave has been obtained during the two weeks. 4. The problem, as rightly noted by the JR, is that it is not clear why a request for leave should be made. That term should be considerably shorter than 15 days to give the Court of First Instance the possibility to rule. 5. Because filing 5 minutes before the end of the 15-days period would be possible, then in fact it would always be the Court of Appeal which has to decide (because no leave is granted by the CFI within 15 days). This is not the intention of the Rules and leads to unnecessary work for the Court of Appeal, which has not issued the order in first instance and would therefore have to study it while the Court of First Instance knows its own order. 6. Already before the order is issued, a party can ask to state in the order that leave for appeal is granted. 7. A reasonable interpretation of R. 220.2 RoP suggests therefore that the Court of First Instance should get a reasonable time to be able to decide a request for leave for appeal, and therefore a party should file a request at the latest 7 days after the service of the order. If filed later, the request should be held inadmissible. It is up to the Court of Appeal to decide about this point. 8. When the Rules are revised, this should certainly be included in R. 220.2 RoP.

Full Decision Text

1 Order of the Court of First Instance of the Unified Patent Court issued on 15/06/2026 regarding: R.220.2 Claimant: 1) Telefonaktiebolaget LM Ericsson (publ) Torshamnsgatan 21, Kista 164 83 Stockholm Sweden “Claimant” or “Ericsson” represented by Wim Maas Defendants: 1) Shenzhen Transsion Holdings Co. Ltd Unit 1, Floor 24, Chuanyin Building, No.8, Xianyuan Road, Xili Sub-district, Nanshan District 518000 Shenzhen City China represented by Andreas Kramer 2) Tecno Mobile Limited Flat N, 16/F., Block B, Universal Industrial Centre, 19- 25 Shan Mei Street, Fotan, New Territories Hong Kong Hong Kong, China represented by Andreas Kramer 3) Itel Mobile Limited Flat N, 16/F., Block B, Universal Industrial Centre, 19- 25 Shan Mei Street, Fotan, New Territories Hong Kong Hong Kong, China represented by Andreas Kramer 4) Infinix Mobility Limited Flat N, 16/F., Block B, Universal Industrial Centre, 19- 25 Shan Mei Street, Fotan, New Territories Hong Kong represented by Andreas Kramer The Hague - Local Division UPC-CFI-0001568/2025 UPC-CFI-0001791/2025 UPC-CFI-0001793/2025 2 Hong Kong, China 5) Tekpoint GmbH Leopold Ungar Platz 2 1190 Wien Austria represented by Andreas Kramer 6) IRD Distribuce, S.R.O. 3 – Vinohrady, nám. Jiřího z Poděbrad 1658/11 13000 Prague Czechia Not represented 7) x-kom GmbH Cottbus Charlottenstraße 34 01099 Dresden Germany Not represented 8) TradeInn Retail Services, S.L C/ Dels Pirineus, 9, Nave 1B, Polígono Industrial Celrà 17460 Girona Spain Not represented 9) Egenta s.r.o. Varšavská 715/36, Vinohrady 120 00 Prague Czechia Not represented 10) NTT System S.A. Trakt Brzeski 89, Zakręt, Warszawa-Wesoła, Mazoweickie 0555-007 Wiazowna Poland represented by Andreas Kramer Collectively: “Defendants”, and defendants 1-7 and 10 as ‘Represented defendants”. Defendants 1-4 are also referred to as “Transsion”. PATENTS AT ISSUE: EP 2 712 236 B1 (case 1568/2025) EP 3 836 631 B1 (case 1791/2025) EP 3 245 744 B1 (case 1793/2025) all of Telefonaktiebolaget LM Ericsson (publ) PANEL/DECIDING JUDGE: The panel is composed as follows: Presiding Judge Edger Brinkman Judge-rapporteur Margot Kokke Legally qualified judge Samuel Granata 3 Technically qualified judge Christian Keller This order is issued by the panel. LANGUAGE OF THE PROCEEDINGS: English Subject-matter of the proceedings: Infringement action 1. At 17:37 hours on 28 May 2026, the Represented defendants filed a R.220.2 RoP application, requesting leave to appeal the R.20.2 order of 13 May 2026, in which the JR informed the parties that the preliminary objection (PO) will be dealt with in the main proceedings. Ericsson requests that the Court reject the request for leave. To the JR, it is not entirely clear whether the application, that was filed on the fifteenth day after the issuing of the impugned order, is filed timely. When asked during the CMH, the Represented defendants referred to R.220.2 and Ericsson ‘had to study this’. Contrary to R.221.1 RoP, a specific term for lodging an application for leave to appeal for orders referred to in R.202.2 RoP, does not seem to be provided, in any case not explicitly. On the other hand, in a recent order1, the Court of Appeal of the UPC (CoA) considered that no decision from the court of first instance (CFI) within a 15-day period from the impugned decision (‘the first 15-day period’), is deemed to be a refusal. Thus, from R.220 paragraphs 2 and 3 RoP read together, as interpreted by the CoA, it appears to follow that a request for leave should be submitted (well) before the expiry of a 15-day period from the impugned order (‘the first 15-day period’). Only this would enable the (CFI) to provide leave or refuse leave (and if considered appropriate hear the other party), within the first 15-day period. In the present circumstances, where the Represented defendants filed their request at the very end of the first 15-day period, it is not possible for the CFI to grant or refuse leave within the first 15-day period. 2. Assuming that the application was filed timely, the request is denied. This outcome was already announced at the case management hearing (‘CMH’) held on 12 June 20262. With the impugned R.20.2 RoP order, the JR, based on her discretionary power thereto, referred the decision on the PO to the main action. The grounds for this referral are set out in the impugned order to which reference is made and which equally apply to the dismissal of the appeal. Briefly summarised, they are (i) the fact that the PO concerns only part of the case and cannot lead to the dismissal of the case against any defendant, (ii) the legal issue raised with the PO is, contrary to what is asserted, materially assessed to be the same as what was decided by the LD Paris (on 30 October 2025) and the CoA (on 16 March 2026) in Sun/Vivo3 regarding the FRAND-determination being a condition for an injunction (and thus further guidance by the CoA is not required at this point 1 See Court of Appeal of the UPC (CoA) order of 10 June 2026, UPC CoA 85/2026 (Speed Care/Teleflex) at 20 and 21 2 The order with (other)decisions taken at the CMH, is also issued today. 3 Docket numbers UPC CFI 361/2025, respectively UPC CoA 904 and 905/2025 4 in time) and (iii) the rules on jurisdiction are still developing within the UPC, so that later assessment will allow the court to consider any new developments. 3. On 10 June 2026, the Represented defendants filed a second R.220.2 RoP request requesting leave to appeal the R.262A RoP order of the panel of 27 May 2026 setting a confidentiality regime (the Confidentiality Order). Regarding admissibility of this application, which was also filed on the very last day of the first 15-day period, reference is made to paragraph 1 above. 4. Assuming that the request is admissible, leave is granted. This will give the CoA the opportunity to clarify whether filing the request at the last day is admissible. This will further give the CoA the opportunity to clarify whether/that a phased confidentiality regime is permitted within the framework of the UPC, in any case in the specific circumstances of FRAND/SEP cases. This best takes into account the interests of the parties, including proportionality considerations. The reason for this is that comparable licences concern, in the words of Transsion/the Represented defendants4 ‘highly sensitive commercial information, including terms negotiated with third parties who are not before the Court. As recognised in Oppo v Panasonic [UPC CoA 298-300/2024, 24 September 2024], the protection of business secrets and the avoidance of undue procedural burdens are key considerations in assessing proportionality”. The Represented defendants asserted this with respect to their own licences with third parties. Although the Represented defendants seem to imply that a different standard should apply to their (‘comparable’) licences than to Ericsson (‘comparable’) licences, the Court fails to see the difference. 5. In such phased confidentiality regime, in a first phase, access to (in particular) highly confidential comparable licences with third parties, is restricted to UPC representatives and one or more appointed party experts, as set out in the Confidentiality Order. This allows the representatives and the party experts to determine the possibly considerably smaller number of licence agreements which are actually deemed relevant for the determination of a FRAND rate, at the same time avoiding that employees of the other party get access to a huge amount of highly confidential information that (largely) turns out not to be relevant at all. In its orders of 15 January 2026 in Sun v Vivo and Ericsson v Asutek5, the CoA considered that the relevance of the confidential information for the performance of the person’s role in the proceedings before the court, is a determining factor for the grant of access. In SEP cases where assessment of the FRAND-ness of an offer or the determination of such rate is at issue, typically only a relatively limited set of comparable licences is ultimately considered relevant. This set will typically be determined in the course of the proceedings and is not known from the outset. The outcome can even be that no comparable licences that a party relies on turn out 4 In the Represented defendants’ response to the R.190 RoP application dated 19 May 2026. With that application, Ericsson seeks an order for the Represented defendants to provide ‘comparable licences’ that Transsion concluded with third parties. See CMH order of 15 June 2026. 5 Docket numbers UPC CoA 631 and 632/2025 (Ericsson/Ausustek and Apple as intervener) and UPC CoA 755, 757, 791 and 793/2025 (Sun/Vivo) 5 to be relevant for the case, for instance in case of no infringement of if the application of Huawei/ZTE leads to such outcome. 6. From the Represented defendants’ non-technical SoD in these proceedings (as discussed in paragraph 8. of the CMH order issued today), it is clear that also in this case not all (21) licences alleged to be comparable by Ericsson, will eventually be considered relevant. Narrowing down that number is typically and preferably done by a limited confidentiality club, without needlessly disclosing ‘highly sensitive commercial information’ to the other party. As mentioned, contrary to what Transsion seems to allege, the same standard of confidentiality should apply to Ericsson and Transsion (comparable) licences. In view of a R.190 RoP application filed thereto, initially more broadly submitted Transsion licences are likely to be added to the first phase regime. The disclosure of a broad number of confidential licences (which licences may turn out to be irrelevant) cannot be reversed and is not sufficiently remedied by a licensing bar. A proper weighing of all interests in this case leads to the conclusion that a phased regime is appropriate, with a confidentiality club limited to UPC representatives and party appointed experts in the first phase. Reference is made to the panel’s Confidentiality Order for further circumstances considered relevant in this case for installing a phased regime, including the procedural behaviour of the defendants and considerations about enforcement of a confidentiality order. Once the limited relevant confidential information has been determined, the confidentiality club will be expanded to also include a limited number of employees from the relevant defendants, as indicated in the Confidentiality Order. 7. Leave to appeal will also allow the CoA to clarify whether/that it is permitted to limit access to a few individuals/employees from several defendants considered relevant in the circumstances of the case, instead of at least one defendant from each defendant, as considered in the Confidentiality Order in paragraph 31. 6 ORDER The court, pursuant to above assuming that the applications are admissible and should not be considered refused: I. Refuses leave to appeal the R.20.2 RoP order of 13 May 2026, informing the parties that the preliminary objection will be dealt with in the main proceedings. II. Grants leave to appeal the Confidentiality Order of 27 May 2026. Presiding judge Brinkman reviewed this order but is currently unable to sign; he asked the judge-rapporteur to sign on his behalf. Brinkman Granata Keller Kokke

Key Holdings

• A request for leave to appeal must be granted within 15 days of service of the order, otherwise it is considered refused.
• The timing of filing a request for leave to appeal is critical, with late filings potentially shifting the decision burden to the Court of Appeal.
• The Judge-Rapporteur granted leave to appeal for an order concerning confidentiality but denied it for a preliminary objection.
• It is suggested that requests for leave to appeal should be filed within 7 days to allow the Court of First Instance sufficient time to decide.
• The Rules of Procedure, specifically R. 220.2 RoP, may require revision to clarify the deadline for requesting leave to appeal.

Tags

• Appeal Proceedings
• Timeliness
• Confidentiality
• Rules of Procedure Interpretation
• Leave to Appeal

Related Cases

• UPC_ CFI_1568/2025; UPC_ CFI_1791/2025; UPC_ CFI_1793/2025 – Ericsson v Transsion
• UPC_CFI_1568/2025; UPC_CFI_1791/2025; UPC_CFI_1793/2025 – Ericsson v Transsion
• UPC_CFI_1568/2025; UPC_CFI_1791/2025; UPC_CFI_1793/2025 – Ericsson v Transsion