UPC_CFI_871/2026 – In(k)control v Esko

Expert Commentary

Resuming proceedings after a stay Facts 1. The JR had stayed the proceedings because the parties were seeking an amicable settlement and had ordered them to report before 1 September 2026 about the result. 2. On 31 August 2026, the parties reported that no settlement had been reached. 3. The defendants argued that the period for filing the defence should start anew after the stay. The claimant disagreed. The JR The JR agrees with the claimant: the time elapsed before the stay counts for the calculation of the (remaining) period for filing the response. Comment 1. A stay is no more than a stay, not a new beginning! 2. The Court should avoid granting a stay unless the parties have indicated that an agreement has been reached or agreed to use a mediator from PMAC to try to reach a settlement. A stay with no settlement in sight is not in line with the objectives of the UPC.

Full Decision Text

Brussels Local Division UPC_CFI_871/2026 Order In accordance with Rule 296(3) of the Rules of Procedure of the Court of First Instance of the Unified Patent Court (UPC) Brussels Local Division Delivered on 3 September 2026 HEADNOTES Rule 296(3) of the Rules of Procedure (RoP) is to be understood as meaning that, following the resumption of proceedings that were previously stayed, the applicable procedural periods shall resume from the date of the order to resume proceedings, taking into account the periods that had already elapsed prior to the proceedings being stayed. KEYWORDS • Rule 296(3) of the Rules of Procedure (RoP) • Decision to resume proceedings that were previously stayed • Procedural periods CLAIMANT(S): In(k)control BV 9800 Deinze (Belgium), E3-laan 43, 9800 Deinze (Belgium) Represented by: Kristof Neefs, lawyer (Inteo) Timothy Van de Gehuchte, lawyer (Portelio) Ellen Crabbe, patent attorney (Brantsandpatents) Hereinafter referred to as: ‘The Claimant’ or ‘IN(K)CONTROL’ DEFENDANT(S): 1. Esko-Graphics BV 2. Esko Software BV Raymonde de Larochelaan 13, 9051 Gent, Belgium Raymonde de Larochelaan 13, 9051 Gent, Belgium Represented by: Kristof Roox, lawyer (Crowell & Moring LLP) Jan-Diederik Lindemans, lawyer (Crowell & Moring LLP) Margot Horowitz, lawyer (Crowell & Moring LLP) Margaux Dejonghe, lawyer (Crowell & Moring LLP) Hereinafter referred to collectively as: Hereinafter referred to individually as: ‘The Defendants’ or ‘ESKO’ ‘Defendant 1’ or ‘ESKO-GRAPHICS’ ‘Defendant 2’ or ‘ESKO-SOFTWARE’ PATENT(S) TO WHICH THE DISPUTE RELATES Patent No Patent holder(s) EP 3 841 735 IN(K)CONTROL BV UPC_CFI_871/2026 2 PANEL/DIVISION: Presiding judge and judge-rapporteur Samuel Granata Legally qualified judge Marije Knijff Legally qualified judge Daniel Voß DECIDING JUDGE: This order is issued by the judge-rapporteur. I. PROGRESS OF THE PROCEEDINGS; PARTIES’ SUBMISSIONS 1. On 29 May 2026, the Claimant and the Defendants jointly filed an application under Rule 295(d) RoP seeking a stay of proceedings. The parties requested that the proceedings be stayed for an indefinite period in light of the forthcoming amicable settlement negotiations. 2. The application related to both the infringement proceedings and the ancillary proceedings concerning the application for security (specifically ‘deadlines for submissions on the application for security, as set by the Judge-Rapporteur on 20 May 2026’). 3. Pursuant to Rule 295(d) RoP, the order of 1 June 2026 suspended both the infringement proceedings and the proceedings relating to the application for security, with effect from 29 May until 1 September 2026. The parties were requested to inform the Court of the outcome and/or progress of the negotiations by 1 September 2026. 4. On 31 August 2026, the parties informed the Court that no amicable settlement could be reached and requested that the proceedings be resumed. 5. While the Claimant stated that it agreed with the Court’s opinion as regards the effect of the resumption on the time limits (‘periods’) of the previously stayed procedure, the Defendants requested that ‘the deadline for submitting the statement of defence be set at 30 November 2026’. The Defendants took the view ‘that once the suspension ends, the procedural periods begin to run afresh’. 6. Before issuing an order under Rule 296(3) RoP, the Court requested on 1 September 2026 that the Claimant submit its views no later than 3 September 2026 regarding the interpretation of Rule 296(3) RoP, and more specifically the implications for the procedural periods following the resumption of the proceedings. 7. The Claimant submitted its views on 1 September 2026, asserting that Rule 296(3) RoP refers to a ‘stay’ and not to an ‘interruption’ of the procedural periods. In this regard, it refers, inter alia, to (i) the formulation of Rule 296(3) RoP taken as a whole; (ii) the translations of the English-language RoP into French and German; (iii) the general principles of proportionality UPC_CFI_871/2026 3 and fairness (Article 42 UPCA) and the adverse time implications for proceedings before the UPC were the Defendants’ interpretation to be followed; and (iv) the circumstances of the case (i.e. the reason why the stay was sought). II. GROUNDS II.A. Interpretation of Rule 296(3) RoP 8. Rule 296(3) of the Rules of Procedure (RoP) provides as follows in its English-, French- and German-language versions (followed by a translation into the language of the proceedings (Dutch) using DeepL): English While proceedings are stayed, time shall cease to run for the purposes of procedural periods. Time shall begin to run afresh for the purposes of procedural periods from the date on which the stay of proceedings comes to an end. [Literal back-translation as expressed in the original Dutch version of this document: ‘As long as the proceedings are stayed, the running of the procedural time limits is suspended. The procedural time limits start running again from the date on which the stay of proceedings ends.’] French Pendant la période de sursis, les délais de procédure cessent de courir. Les délais recommencent à courir à compter de la date à laquelle le sursis cesse. [Literal translation]: During the suspension period, the procedural time limits are suspended. The time limits start running again from the date on which the suspension ends. German Solange das Verfahren ausgesetzt ist, laufen die prozessualen Fristen nicht. An dem Tag, an dem die Aussetzung des Verfahrens endet, beginnen die prozessualen Fristen erneut zu laufen. [Literal translation]: As long as the proceedings are stayed, the procedural time limits do not run. On the day on which the stay of proceedings ends, the procedural time limits start running again. On the one hand, it should be noted that the RoP do not contain a provision indicating which language version is ‘official’ or ‘authentic’. On the other hand, it appears that the English- language version was approved by the Administrative Committee on 8 July 2022, with the amended version being approved on 4 November 2025. The French-language version was approved by the Administrative Committee on 31 August 2022, but its amended version does not appear to have been approved. The German-language version does not appear to have been approved by the Administrative Committee in either its original or amended versions. 9. Different divisions of the UPC have implemented the aforementioned rule in different ways. It can be inferred from certain orders that the resumption of proceedings, following the lifting UPC_CFI_871/2026 4 of a stay, means that the initial procedural period begins to run afresh in full (see the orders of the Munich Local Division of 26 August 2025, UPC CFI 559/2025 (Shangrao v. LONGi) and of the Hamburg Local Division of 16 January 2025, UPC CFI 169/2024 (Daedalus v. Xiaomi)). Meanwhile, a more nuanced interpretation can be inferred from another order (order of the Nordic Baltic Regional Division of 16 August 2024, UPC_CFI_8/2023 (Edwards v. Meril)), which is based on a deliberately vague provision that would allow the Court to implement it in the light of the circumstances of the case, procedural economy and flexibility. 10. The Court rules that Rule 296(3) RoP shall be interpreted as meaning that, following the resumption of proceedings that were previously stayed, the applicable procedural periods shall resume from the date of the order to resume proceedings, taking into account the periods that had already elapsed prior to the stay. The Court bases its reasons on the following: • The first sentence of Rule 296(3) RoP refers to a stay of proceedings, expressly stating: ‘time shall cease to run for the purposes of procedural periods’. The Court considers that this refers not to an interruption but to a stay (or ‘suspension’) of proceedings. That this refers to a stay of proceedings is evident from the order of the Court of Appeal (CoA) of 1 July 2025 (UPC_CoA_542/2025 (Easee v. Visibility)), which states: ‘During a stay of the proceedings all time limits are automatically suspended.’ • ‘Suspension’ refers to a temporary pause in an event or – when applied to the first sentence of Rule 296(3) RoP – of a procedural period. • The second sentence of Rule 296(3) RoP must be read in conjunction with the first sentence. The phrase ‘begin to run afresh’ must therefore be interpreted in the light of the first sentence. The first sentence indicates that the periods are suspended. The phrase ‘begin to run afresh’ therefore refers to the consequences for the periods following the resumption of proceedings, whereby the temporary suspension is lifted and time ‘shall begin to run afresh’ (i.e. is resumed). If the phrase ‘begin to run afresh’ were intended to refer to the recommencement of a new period, the first sentence would make no sense. • The translations of the phrase ‘(…) to run afresh for the purposes of procedural periods’ do not contradict this interpretation. The term ‘afresh’ appears to have two meanings in English, as either ‘anew’ or ‘again’ (AFRESH | English meaning – Cambridge Dictionary). The Defendants’ interpretation follows the ‘anew’ interpretation; however, this does not appear to be in line with the first sentence of Rule 296(3) RoP, which refers to a stay (or suspension). Only if the first sentence of Rule 296(3) RoP referred to an ‘interruption’ could ‘afresh’ be understood as ‘anew’. However, the first sentence of Rule 296(3) RoP indicates that ‘afresh’ should be interpreted as ‘again’. • Now that it is clear how the phrase ‘time shall cease to run for the purpose of procedural periods’ is to be interpreted in the sense of the stay (temporary suspension) of a procedural period, and how ‘begin to run afresh’ is to be interpreted as ‘begins to run again’, the consequences for the periods following the resumption of the proceedings can be clearly established in accordance with the second sentence of Rule 296(3) RoP. The lifting of a temporary stay of proceedings (in an order directing the resumption of the proceedings) means that the proceedings must be resumed, taking into account the procedural periods that had elapsed prior to the stay. • This interpretation is further supported by the French and German translations of the RoP, which can be found on the UPC website. The French text states: ‘Les délais recommencent à UPC_CFI_871/2026 5 courir’, meaning ‘The time limits start running again’. If the intention were to refer to a period that would once again have its original duration without taking into account the period that had already elapsed prior to the stay, either the phrase ‘à courir’ would have been omitted, or the phrase ‘de nouveau’ would have been added. The German text states: ‘beginnen die prozessualen Fristen erneut zu laufen’, which also refers to the time limits resuming. Although the Defendants submit the German text as ‘von neuem zu laufen’, this exact wording of the translation cannot be found anywhere in the translation available on the UPC website. II.B. APPLICATION OF TIME LIMITS FOR INFRINGEMENT PROCEEDINGS 11. Given that (i) the statement of claim was served on 26 March 2026; (ii) the Defendants were required to file their statement of defence within three months (i.e. 26 June 2026, pursuant to Rule 300(c) RoP); (iii) the proceedings were stayed with effect from 29 May 2026 by an order dated 1 June 2026; and (iv) pursuant to Rule 300(a) RoP regarding the computation of relevant days, the Defendants must file their statement of defence and any counterclaim for revocation by 2 October 2026 at the latest. The stay took effect on 29 May 2026, as set out in the order of 1 June 2026. On 29 May 2026, the Defendants had 29 days remaining (including 29 May 2026 in the computation) to file their statement of defence and any counterclaim for revocation, taking into account the fact that May has 31 days. This order is made on 3 September 2026 (with the 29-day period commencing on the following day), which means that the deadline for filing the statement of defence and any counterclaim for revocation must be set at 2 October 2026. 12. The Court does not identify any special circumstances – or, at the very least, none have been put forward by the Defendants – that would require it to depart from the above revised procedural timetable on the grounds of proportionality or equity (pursuant to Preamble No 2 RoP), while the Court notes that the RoP still allow the Defendant to request an adjusted time period (pursuant to Rule 9(3) RoP). Such a request will be dealt with in accordance with the normal procedural process, during which the Claimant will be given the opportunity to respond. II.C. APPLICATION FOR SECURITY 13. The application for security was requested by the Defendants on 12 May 2026. In a communication from the Court, the following deadlines were set: • for the Claimant (the respondent to the application for security): 27 May 2026 • for the Defendants (seeking the application for security): 1 June 2026 • for the Claimant (the respondent to the application for security): 4 June 2026. 14. Following the submission of the Claimant’s first written submission on 27 May 2026, an order dated 1 June 2026 stayed both the ancillary proceedings (application for security) and the infringement proceedings with effect from 29 May 2026. UPC_CFI_871/2026 6 15. In their respective applications for the proceedings to be resumed, none of the parties specified or proposed any specific dates regarding the timetable for the ancillary proceedings (application for security). 16. Given that the stay was ordered to take effect on 29 May 2026, the Defendants must, pursuant to Rule 296(3) RoP, lodge their written submission by 7 September 2026. Subsequently, the Claimant is requested to lodge its submission by 18:00 on 10 September 2026. The stay took effect on 29 May 2026, as set out in the order of 1 June 2026. On 29 May 2026, the Defendants had four more days (with 29 May 2026 included in the computation) to lodge their written submission by 1 June 2026 at the latest. This order is made on 3 September 2026 (with the computation of the remaining four days commencing on the following day), which means that the deadline for the Defendants is to be set at 7 September 2026. III. ORDER 1. The Court orders the resumption of the infringement proceedings, setting the deadline for filing the statement of defence at 18:00 on 2 October 2026. 2. The Court orders the resumption of the ancillary proceedings relating to the application for security and sets the following timetable for the parties: • for the Defendants, no later than 18:00 on 7 September 2026 • for the Claimant, no later than 18:00 on 10 September 2026. Order issued on 3 September 2026 by: Samuel GRANATA Presiding judge and judge-rapporteur

Key Holdings

• A stay of proceedings does not cause procedural deadlines to start anew upon resumption.
• The time elapsed prior to a stay counts towards the calculation of the remaining period for filing a response or defence.
• A stay should generally be avoided unless the parties have reached an agreement in principle or agreed to mediation via the PMAC.

Tags

• Resuming proceedings after a stay
• Stay of proceedings
• Calculation of time limits
• Statement of defence
• Amicable settlement

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• UPC_CFI_871/2026 – In(k)control v Esko
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