UPC_CFI_291/2024 – Syngenta v Sumi Agro

Expert Commentary

Payment is not the same as payment received! Background 1. The LD Munich issued an order for preliminary measures (an order to preserve evidence and a preliminary injunction). 2. The applicant asks for revocation of the orders, because no case on the merits was filed within 20 working days or 31 days (R. 213.1 RoP). According to the applicant, the (timely) filing on 27 September 2024 was only effective on 30 September 2024 when the court fee was received by the Registry. 3. The respondent had paid on Friday 27 September 2024, but the Registry was credited on (Monday) 30 September 2024. 4. The applicant referred to R. 15.2 RoP, which states that “The Statement of claim shall not be deemed to have been lodged until the fixed fee and, where applicable, the value based fee for the infringement action has been paid, unless otherwise provided.” Decision of the JR This concerns a false application of R. 15.2 RoP and the applicant gives it the wrong meaning. a. R. 15.2 RoP does not require that the fee “has been received by the Court”. It is sufficient that the fees have been paid. b. R. 213.1 RoP states that the applicant has “to start” proceedings on the merits. “Starting” means beginning with something, which here is filing the Statement of Claim in the CMS. Nothing in R. 213.1 RoP states or implies that for the start the court fees must have been received by the Court. Comment 1. Smart, smarter, smartest! 2. Did the applicant seriously think that their application had any merit?

Full Decision Text

1 Order of the Court of First Instance of the Unified Patent Court Local Division Munich issued on 12 December 2024 APPLICANT Syngenta Limited, Jealott’s Hill International Research Centre, RG42 6EY, Bracknell, Berkshire – GB represented by: Dr. Jörn Peters (Fieldfisher) Prof. Dr. Aloys Hüttermann (Michalski, Hüttermann & Partner) Dr. Filip Alois J. De Corte, Dr. Christopher Andrews (Syngenta Crop Protection AG) RESPONDENTS 1) Sumi Agro Limited, Bürgermeister-Neumeyr-Str. 7 - 85391 - Allershausen – DE 2) Sumi Agro Europe Limited, Bürgermeister-Neumeyr-Str. 7 - 85391 - Allershausen – DE represented by: Gareth Williams (Marks & Clerk) Johannes Heselberger, Dr. Axel B. Berger, Dr. Kerstin Galler, Dr. Markus Ackermann (Bardehle Pagenberg) PATENT AT ISSUE European patent n° EP 2 152 073 PANEL/DIVISION Panel 1 of the Local Division Munich DECIDING JUDGES This order has been issued by the presiding judge Dr. Matthias Zigann acting as judge- rapporteur. Local Division Munich UPC_CFI_201/2024 2 LANGUAGE OF THE PROCEEDINGS English SUBJECT-MATTER OF THE PROCEEDINGS Application for provisional measures. Request to revoke an Order for preliminary measures (RoP198 and RoP213) App_62613/2024 REQUESTS BY THE PARTIES Applicant requests: a. Revoke Order No. ORD 47657/2024, without prejudice to the damages which may be claimed by the Defendants. b. Order the Claimant to pay the Defendants’ costs of the proceedings, including the costs of this Application. Respondents request: I. The Respondents' [= Applicants] Application to revoke provisional measures is dismissed. II. The Respondents [Applicant] bear the costs of the proceedings, including the costs of their Application to revoke provisional measures. ARGUMENTS BY THE PARTIES Applicant argues: “The 20 working day deadline expired on 24 September 2024, while the 31 calendar day deadline expired on 27 September 2024. Pursuant to Rule 9.4 RoP, the deadline set under Rule 213.1 is non-extendable. It is a mandatory time limit which cannot be modified. The Claimant subsequently started proceedings on the merits on 30 September 2024 under ACT 53813/2024 (UPC CFI 566/2024). The date on which proceedings are started is determined by when (in this case) the Statement of claim is uploaded to the CMS and when the court fee is paid. Pursuant to Rule 15.2 RoP, the Statement of claim shall not be deemed to have been lodged until the applicable court fees have been paid. Accordingly, proceedings are not started until the court fees have been paid. On 21 November 2024, the Registry of the Court confirmed the following information to the Defendants’ representatives concerning when the Claimant started proceedings on the merits (see the email exchange attached as Exhibit SA-18): a. The Statement of claim was uploaded to the CMS on 27 September 2024. b. The court fee was received by the Court on 30 September 2024. The Statement of Claim is therefore deemed to have been lodged and the proceedings started on 30 September 2024. This is after the non-extendable deadline of 27 September 2024. The Order must therefore be revoked under Rule 213.1 RoP. The rule does not 3 permit the exercise of discretion.” Respondents argue: “The Respondents' request is based on a misrepresentation of the relevant provisions in the Rules of Procedure and, most importantly, ignores the main relevant Rule for the timely payment of court fees, R. 371 (1) RoP, which clearly states that the payment should be made at the time of filing. None of these provisions demand that the monies paid upon filing need to have arrived at the UPC's bank account before the deadline's expiry. Requesting a party to make the payment so that it arrives before the end of the deadline would also not be consistent with how the Case Management System of the court is set up, would amount to a de facto shortening of said deadline by at least one day and lead to various impractical consequences for both the users of the UPC system and the Courts.” GROUNDS FOR THE ORDER The application is to be dismissed. The Applicant falsely apply R. 15 (2) RoP and additionally give it an improper meaning. Rule 15 (2) RoP states: "The Statement of claim shall not be deemed to have been lodged until the fixed fee and, where applicable, the value based fee for the infringement action has been paid, unless otherwise provided." In German: “Soweit nichts anderes bestimmt ist, gilt die Klageschrift erst dann als eingereicht, wenn die Festgebühr und gegebenenfalls die streitwertabhängige Gebühr für die Verletzungsklage bezahlt wurde.“ In French: “Le mémoire en demande n’est pas réputé avoir été déposé tant que le droit fixe et, le cas échéant, le droit fondé sur la valeur du litige pour l’action en contrefaçon n’a pas été payé, sauf disposition contraire”. Neither the English nor the German nor the French version state that the fee "has been received by the court". The wording in all languages clearly state that it is sufficient that the court fees have been paid for the statement of claim to be deemed to have been lodged (per se and not when: R. 15 (2) RoP does not stipulate the date of filing). Further Rule 213 (1) RoP states that applicant has "to start" proceedings on the merits. The wording of the rule unambiguously states that the "start" of the proceedings on the merits is sufficient. Starting something in other words means to begin with. Starting the proceedings on the merits means that the statement of claim is filed in the CMS. Nothing in R. 213 (1) RoP states or implies that for the start of the proceedings the court fees have to have been received by the Court. As the respondents have started the main proceedings and paid the court fee in time the application is to be dismissed. 4 ORDER 1. The application is dismissed. 2. The Applicant must bear the costs of this application. INFORMATION ABOUT REVIEW BY PANEL Any party may request that this Order be referred to the panel for a review pursuant to R. 333 RoP. Pending review, the Order shall be effective (R. 102.2 RoP) DETAILS OF THE ORDER Order no. ORD_65555/2024 in ACTION NUMBER: Not provided UPC number: UPC_CFI_201/2024 Action type: Not provided Related proceeding no. Application No.: 23636/2024 Application Type: Application for provisional measures (RoP206) Dr. Zigann Presiding Judge and Judge-rapporteur

Key Holdings

• The Judge-Rapporteur clarified that for the purpose of R. 15.2 RoP, court fees are considered "paid" when the party initiates the payment, not when the Registry receives the funds.
• The decision confirms that "starting" proceedings on the merits under R. 213.1 RoP refers to filing the Statement of Claim in the CMS, irrespective of the exact moment court fees are credited to the Registry.
• An application to revoke preliminary measures based on a delayed crediting of court fees was denied, emphasizing a practical interpretation of procedural rules.

Tags

• Court Fees
• Interim Measures
• Procedural Issues
• Statement of Claim
• Time Limits

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