UPC_CFI_541/2025_Nov17_Withdrawal – Leap Tools v Wizart
- Court
- Local Division Düsseldorf
- Date
- Outcome
- Granted
- Sector
- Other
- Decision Type
- PROCEDURAL
Expert Commentary
Withdrawal of action Facts 1. The action was filed on 13 June 2025 against defendant 1 and 2. 2. Claimant had not noted that defendant 1 had moved to the US which caused a first failed service. Thereafter, the responsible agent for defendant 1 refused to accept service for defendant 2. 3. The claimant asked the Court to allow service at the residence of the CEO of defendant 2 in Poland. However, defendant 2 does not exist! 4. Claimant asked withdrawal of the case against defendant 2. The JR The JR allows the withdrawal. Withdrawal in part (only against defendant 2) is allowed. As defendant 2 is not represented and it is clear that their interests are not harmed (as until now they have not made any costs) they do not have to be heard. Claimant has to bear the costs. Comment 1. Not much progress has been made since 13 June 2025! 2. It is a good lesson for representatives to make sure that you give the Registry the right address of the company to be served and make sure before (as in this case) spending time and you client’s money with requests for alternative service (here in Poland) that the defendant to be served exists! So, before you start, make sure you have done the right research in the country (here the US) where you want the Registry to serve and make sure it is still up to date at the time of service. This also requires that (also in a busy Division) service by the Registry is done straightaway.
Full Decision Text
Düsseldorf Local Division UPC_CFI_541/2025 Decision of the Court of First Instance of the Unified Patent Court issued on 17 November 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, Defendant 1 represented by: Patent Attorney Prof Dr Aloys Hüttermann, Patent Attor- ney Dr Rolf Claessen, Patent Attorney Fabian Pech, Michalski Hüttermann & Partner Patentanwälte mbB, Kaistraße 16A, 40221, Düsseldorf, Germany electronic address for service: claessen@mhpatent.de 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 1 DECIDING JUDGES: This decision was issued by Presiding Judge Thomas, legally qualified judge Dr Schumacher acting as judge-rapporteur and legally qualified judge Johansson. LANGUAGE OF THE PROCEEDINGS: English SUBJECT: R. 265.1 RoP – Application for leave to withdraw the action 1. The Claimant filed an infringement action dated 13 June 2025 against Defendant 1 and Defendant 2. 2. In the Statement of claim, 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. 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 15 October 2025, the Court permitted that the Statement of claim be served to Defendant 2 by serving it to its CEO’s business address in Poland. 8. In a brief dated 16 October 2025, the representatives of Defendant 1 announced that they were taking over representation of Defendant 1 only, not Defendant 2. According to Defendant 1, Defendant 2 is a non-existent company, as under this address only a Wizart Inc. can be reached and is listed in the commercial register. 9. By brief dated 20 October 2025, the Claimant applied to withdraw the infringement action against Defendant 2. The Claimant stated that the assertion of Defendant 1 raises doubts about the sense of pursuing the lawsuit against Defendant 2, apart from the delay this would entail. 10. The Statement of claim has not yet been served on Defendant 2. 11. Defendant 1 was given the opportunity to comment on the application. It did not provide any comments. GROUNDS FOR THE DECISION: 12. The decision is based on R. 265.1 and 265.2 RoP. 13. Pursuant to R. 265.1 RoP, the claimant may apply to withdraw its action as long as a final decision on the action has not yet been issued. The Court shall decide the application after hearing the other party. The application to withdraw shall not be permitted if the other party 2 has a legitimate interest in the action being decided by the Court. 14. R. 265.1 RoP also applies if the action is not withdrawn in its entirety, but only in relation to some of several defendants (UPC_CFI_513/2023 (LD Munich), Decision of 13 August 2024 – Network System v. Texas Instruments; see also UPC_CoA_205/2024, Order of 4 June 2025, para. 17 – Nera Innovations v. Xiaomi, regarding the withdrawal of an appeal). 15. Defendant 2 has no legitimate interest in the action being decided by the Court. Given that the Statement of claim has not yet been served, the interests of Defendant 2 are of lesser importance. Service of the Statement of claim involves a defendant in the proceedings and usually entails the effort and cost of preparing a statement of defence (see UPC_CoA_205/2024, Order of 4 June 2025, para. 17 – Nera Innovations v. Xiaomi, regarding the withdrawal of an appeal). No other possible interests of Defendant 2 are apparent either. 16. As service has not yet been completed, it was unnecessary to hear Defendant 2. It does not seem reasonable to attempt to serve the application to withdraw at the CEO’s business address in Poland. The CEO of Defendant 1 and Defendant 2 is the same person. As Defendant 1 has stated that Defendant 2 is a ‘non-existent company’, it cannot be assumed that service in Poland will be accepted. 17. The cost decision is based on R. 265.2(c) RoP. Following the withdrawal, the Claimant shall bear the costs with regard to Defendant 2. 18. With regard to Defendant 1, a change of representative has been announced by brief of 17 November 2025. However, it is not yet effective in the absence of a notification of the new representative, R. 293 RoP. ORDER: 1. Withdrawal of the infringement action with regard to Defendant 2 is permitted. 2. The proceedings with regard to Defendant 2 are declared closed. 3. This decision shall be entered in the register. 4. With regard to Defendant 2, the costs of the infringement action are to be borne by the Claimant. 3 Issued in Düsseldorf on 17 November 2025 NAMES AND SIGNATURES Ronny Digital unterschrieben Presiding Judge Thomas von Ronny Thomas Thomas Datum: 2025.11.17 15:09:00 +01'00' Digital unterschrieben Jule Kathrin von Jule Kathrin Schumacher Legally qualified Judge Dr Schumacher Schumacher Datum: 2025.11.17 14:56:07 +01'00' Legally qualified Judge Johansson Stefan Erik Digitally signed by Stefan Erik Johansson Johansson Date: 2025.11.17 15:43:22 +01'00' Rachida Digital unterschrieben von Rachida Boudra- For the Sub-Registrar Boudra- Seddiki Datum: 2025.11.17 Seddiki 16:03:56 +01'00' 4
Key Holdings
- Partial withdrawal of action allowed (against non-existent defendant).
- Service issues due to incorrect address/defendant status.
- Claimant bears costs.
Tags
- Case Management
- Due Diligence
- Service
- Withdrawal