UPC_CFI_541/2025 – Leap Tool Inc. v Wizart Inc. (USA)
- Court
- Local Division Düsseldorf
- Date
- Outcome
- Granted
- Sector
- Other
- Decision Type
- PROCEDURAL
Expert Commentary
Service Facts and order The claimant showed that two attempts were made to serve the Statement of Claim on the second defendant in the United States in accordance with The Hague Convention, and asked to allow alternative service on the CEO of the second defendant at his address in Poland. The JR allowed the request. Comment I fully agree with the decision. Defendants who try to make service impossible should not succeed. However, I wonder if this unilateral service Rule in the Rules of Procedure is in accordance with (allowed by) The Hague Convention, which has in my opinion a specific article dealing with this situation in Art. 15 (2).
Full Decision Text
Düsseldorf Local Division UPC_CFI_541/2025 Procedural Order of the Court of First Instance of the Unified Patent Court issued on 15 October 2025 concerning EP 3 859 566 CLAIMANT: Leap Tools Inc., 1255 Bay St., Unit 200A, Toronto, ON M5R 249, Canada, represented by its CEO Pawel Rajszel represented by: Attorney-at-law Dr Henrik Timmann, Attorney at law Dr Melanie Strobel, rospatt Rechtsanwälte PartGmbB, Emanuel-Leutze-Straße 11, 40547 Düsseldorf, Germany contributing: Patent Attorney Dr Manuel Schrader, Patent Attorney Dr Volker Mergel, Blumbach Zinngrebe Patentanwälte PartG mbB electronic address for service: UPC-LeapTools-EP566@rospatt.de DEFENDANTS: 1. Wizart Inc., 919 North Market St, Suite 950, Wilmington, 19801-3036, DE, USA, represented by its CEO Vasili Yavarchuk, 2. Wizart LLC, 919 North Market St, Suite 950, Wilmington, 19801-3036, DE, USA, represented by its CEO Vasili Yavarchuk, PATENT IN SUIT: European Patent n° 3 859 566 PANEL/DIVSION: Panel of the Local Division in Düsseldorf DECIDING JUDGES: The order was issued by legally qualified judge Dr Schumacher acting as judge-rapporteur. LANGUAGE OF THE PROCEEDINGS: English 1 SUBJECT: R. 275 RoP – Service by an alternative method SUMMARY OF THE FACTS AND REQUEST: 1. The Claimant filed an infringement action against Defendant 1) and Defendant 2). 2. In the Statement of claim dated 13 June 2025, the Claimant named “919 North Market St, Suite 950, Wilmington, 19801-3036, DE, USA” as address for both Defendants. 3. Service to this address failed for both Defendants. According to an on-site employee, both companies had moved to Newark. 4. The Claimant was able to find the address of a registered agent for Defendant 1) in Newark, namely Incorp Services, Inc., 131 Continental Drive, Suite 301, Newark, New Castle, 19713, DE, USA (see Exhibit 7). 5. With regard to Defendant 1), the Statement of claim was served at Incorp Services’ address on 21 July 2025. 6. However, the Statement of claim could not be served at the address of Incorp Services with regard to Defendant 2). The person on site refused, stating that Incorp Services was not the registered agent for Defendant 2). 7. On 8 September 2025, the Claimant filed a brief requesting that the Statement of claim be served on Defendant 2) by way of alternative service to the CEO of Defendant 2) at his business address in Poland. 8. On 11 September 2025, the judge-rapporteur requested that the Claimant provide a more detailed description of the efforts made to determine the new address of Defendant 2). 9. By brief dated 25 September 2025, the Claimant provided further information on the research done to find an address for Defendant 2). GROUNDS FOR THE ORDER: 10. R. 275.1 RoP provides that where service in accordance with section 1 (Service within the contracting member states) or section 2 (Service outside the contracting member states) of the Rules of Procedures could not be effected, the Court on an application that there is a good reason to authorise service by a method or at a place not otherwise permitted by Chapter 2 (Service), may by way of order permit service by an alternative method or at an alternative place. Pursuant to R. 275.4 RoP, no order for alternative service under R. 275 RoP shall be made permitting service in a manner that is contrary to the law of the state where service is to be effected. These requirements are met. Good reason to authorise alternative service 11. The Claimant has demonstrated that there is a good reason to authorise service by an alternative method or at an alternative place, namely at the CEO’s business address in Poland. 12. Two service attempts have failed. 2 13. A first attempt of service on Defendant 2) was made in accordance with R. 274.1 (a) (ii) RoP under the provisions of the Hague Convention. The Claimant has demonstrated that the address in Wilmington, Delaware, was the original business address of Defendant 2). This was justified by the publicly available address of Defendant 1) (919 North Market St, Suite 950, Wilmington, Delaware, see Exhibit rop 6). Additionaly, the Wizart website (Exhibit 3) indicates that both Defendants are located in Wilmington, Delaware. The 'Privacy Policy' on page 18 of Exhibit 3 reads: The following note appears at the bottom of several pages: This is also consistent with the person who was present stating that the company had moved, rather than claiming that it had never been located there. 14. A second attempt to serve the Statement of claim on Defendant 2) was made based on the assumption that the registered agent of Defendant 1) also acts on behalf of Defendant 2). However, this attempt also failed. 15. The Claimant has convincingly demonstrated the attempts to ascertain a new address of Defendant 2) (see Exhibit 9 for screenshots of the online search). As set out in detail in the brief dated 25 September 2025, the Claimant conducted searches in the Delaware corporate registry. The Claimant also unsuccessfully followed up on references to addresses in Belarus and Poland. 16. The Claimant could not reasonably be expected to make any other attempts to find out the new address of Defendant 2). Alternative service permitted under Polish law 17. As demonstrated by the Claimant in the application, service may be effected on a managing director under Polish law. ORDER: It is permitted that the Statement of claim dated 13 June 2025 be served on Defendant 2) by serving it to the CEO of Defendant 2) at the following business address: Vasili Yavarchuk Exposit Consulting Sp. z.o.o. Jana Heweliusza 11/819, Gdańsk, Poland, 80-890 Issued in Düsseldorf on 15 October 2025 3 NAMES AND SIGNATURES Judge Dr Schumacher Jule Kathrin Digital unterschrieben von Jule Kathrin Schumacher Schumacher Datum: 2025.10.15 15:52:57 +02'00' 4
Key Holdings
- Alternative service allowed on CEO in Poland after failed US service attempts.
Tags
- Service
- USA