UPC_CoA_21/2026 – Suinno v Microsoft

Expert Commentary

Default Facts 1. The Local Division revoked Suinno’s patent and ordered Suinno to pay the costs. 2. Suinno appealed. 3. Microsoft requested security for costs with respect to the appeal proceedings and for a default judgment if Suinno would not put up the required security. 4. The Court of Appeal ordered a security of € 600.000 and dismissed a further application of Suinno to revoke or alter the order. 5. Suinno did not provide the security and Microsoft asked for a decision by default. The Court of Appeal 1. Only in a case where the claimant asks for a default judgment, a default judgment should only be given if the facts put forward by the claimant justify such judgment. 2. This rule applies also in appeal proceedings, which means that the respondent in appeal proceedings asking for a default judgment does not have to justify that he would be successful in the appeal. 3. The Court of Appeal explains that if this would be different it would mean that the respondent who won in first instance would then still have to file a statement of response to argue that the decision was correct despite the fact that appellant had not put up security. Comment 1. A well-reasoned and logical decision. Interestingly, R. 357.3 RoP (about default judgments in appeal) does not mention as example the failure of the appellant to put up security but it seems totally logical that it is also applicable in that situation. 2. For the followers of the Suinno decisions, you maybe wonder why Suinno continues defying the obligations to put up security. I would not be surprised if Suinno would go to the European Court of Human Rights in Strasburg arguing that the (high) requirements prevent access to justice (Article 6 ECHR regarding fair trial, Article 13 regarding effective remedy, in combination with Article 1 of the Protocol). If they want to do so, they should have first tried all the possibilities of the UPCA.

Full Decision Text

1 Decision of the Court of Appeal of the Unified Patent Court issued on 22 May 2026 by default in case of non-compliance (R. 158.5 RoP, R. 355 RoP) HEADNOTES: For the purposes of R. 355.2 RoP the appellant is regarded as the claimant in the appeal proceedings. This means that R. 355.2 RoP does not apply in appeal proceedings when a decision by default is requested by the respondent against the appellant because the appellant failed to take a step within the time limit foreseen in the RoP or set by the Court or failed to appear at an oral hearing pursuant to R. 355.1 (a) and (b) RoP. KEYWORDS: - Decision by default against the appellant (R. 355, 357 RoP) - Consequences of the failure to provide security for costs (R. 158.5 RoP) APPELLANT (DEFENDANT IN THE COUNTERCLAIM FOR REVOCATION PROCEEDINGS BEFORE THE COURT OF FIRST INSTANCE ) Suinno Mobile & AI Technologies Licensing Oy, Helsinki, Finland (hereinafter ‘Suinno‘) represented by attorney at law Petri Eskola, Backström & Co Attorneys, Helsinki, Finland R ESPONDENT (CLAIMANT IN THE COUNTERCLAIM FOR REVOCATION PROCEEDINGS BEFORE THE COURT OF FIRST INSTANCE ) Microsoft Corporation, Redmond, United States (hereinafter ‘Microsoft‘) represented by Prof. Dr. Tilman Müller-Stoy, attorney at law, Bardehle Pagenberg, Munich, Germany P ATENT AT ISSUE EP 2 671 173 P ANEL AND DECIDING JUDGES Panel 2 Rian Kalden, presiding judge and legally qualified judge Patricia Rombach, legally qualified judge and judge-rapporteur Ingeborg Simonsson, legally qualified judge Steven Kitchen, technically qualified judge Udo Matter, technically qualified judge UPC Court of Appeal UPC CoA 21/2026 2 IMPUGNED D ECISION OF THE COURT OF FIRST INSTANCE Decision of the Paris Central Division of 7 January 2026 in the counterclaim for revocation proceedings UPC CFI 433/2024 (CC 43155/2024) L ANGUAGE OF THE PROCEEDINGS English SUMMARY OF FACTS 1. Suinno is the proprietor of the patent at issue. Suinno lodged an infringement action against Microsoft before the Paris Central Division. Microsoft lodged a counterclaim for revocation. 2. The Paris Central Division ordered Suinno to provide security for costs for the infringement proceedings. Due to Suinno’s failure to pay the security for costs regarding the infringement action, an application for a decision by default was filed by Microsoft and was ultimately granted by the Court of Appeal (12 July 2025, UCP CoA 363/2025). 3. Following the (final) dismissal of the infringement action, on 6 November 2025 (UPC CFI 724/2025) Suinno was ordered by the Paris Central Division to reimburse Microsoft for costs incurred in the infringement proceedings in the amount of EUR 350,000 within three weeks. Suinno lodged an application to grant leave to appeal pursuant to R. 221 RoP against the cost decision, which was denied by the Court of Appeal on 24 December 2025 (UPC CoA 911/2025). To date, Suinno has made no payment to Microsoft. 4. The Paris Central Division denied the request for stay in the counterclaim for revocation proceedings with order of 30 September 2025, and the proceedings relating to the counterclaim for revocation continued. With the impugned decision, the Paris Central Division revoked the patent at issue in its entirety regarding the territories of the Contracting Member States in which it has effect and ordered Suinno to bear the costs of Microsoft in the counterclaim proceedings. 5. Suinno appealed the impugned decision. 6. On 24 March 2026, Microsoft filed an application for a stay of proceedings pursuant to R. 295 (m) RoP and an application for security for legal costs pursuant to R. 158 RoP. Microsoft requested inter alia a decision by default if Suinno fails to provide such a security within the time specified by the Court. 7. On 7 April 2026 the Court of Appeal ordered Suinno to provide a security for costs to Microsoft in an amount of EUR 600,000 either by deposit or by a bank guarantee issued by a bank licensed in the European Union, within three weeks from the date of service of this order and extended the time period for lodging the Statement of response until 19 June 2026 (hereinafter “security order”). 8. On 24 April 2026, Suinno filed an application to revoke or vary the security order (R. 335, 336, 9.3 (a), 353 RoP). 3 9. On 28 April 2026 the Court of Appeal rejected Suinno’s application as the application to revoke the security order is admissible but has no merit and there are also no grounds for extending the time period for providing security. 10. Suinno has not provided security for costs, whether all or part of it, within the three-week period. 11. On 21 May 2026 Microsoft repeated its request for a decision by default. REASONS 12. Pursuant to R. 158.5 RoP, the Court may give a decision by default pursuant to R. 355 RoP if a party fails to provide adequate security within the time stated. 13. Under R. 355.1 RoP, a decision by default may be given where the Rules of Procedure so provide if a party fails to take a step within the time limit foreseen in these Rules or set by the Court (R. 355.1(a) RoP). Under R. 355.1 RoP, the Court shall thus assess whether the party is in default. If so, and subject to the assessment of the balance of interests between the parties, in exercising its discretion, the Court may give a decision by default without examination of the merits of the action. 14. A decision by default against the defendant of the claim or counterclaim, however, may only be given where the facts put forward by the claimant justify the remedy sought and the procedural conduct of the defendant does not preclude giving such decision (R. 355.2 RoP). 15. As explicitly stated therein, R. 355.2 RoP only applies when a decision by default is sought “against the defendant of the claim or counterclaim”. It does not apply when a decision by default is requested by the defendant against the claimant because the claimant failed to take a step within the time limit foreseen in the RoP or set by the Court or it failed to appear at an oral hearing pursuant to R. 355.1(a) and (b) RoP (CoA, 12 July 2025, UPC CoA 363/2025, Microsoft v Suinno I, para. 17). 16. The rationale underlying R. 355.2 RoP is that a decision by default against the defendant by which the Court orders the remedy sought by the claimant or the counter-claimant, does not only require that the Court finds that the conditions mentioned in R. 355.1(a) or (b) RoP are met, but also finds that the conditions, which the order or the remedy sought presupposes, are met based on the facts that are put forward by the claimant which justify the claims, provided the procedural conduct of the defendant does not preclude to give such decision (Microsoft v Suinno I, para. 18). 17. Pursuant to R. 357 RoP, R. 355 and 356 RoP shall apply mutatis mutandis on appeal. R. 357.2 RoP states that when considering whether to give a decision by default, the Court of Appeal may consider the merits of the appeal. This does not mean that R. 355.2 RoP does not apply in appeal proceedings (see CoA, 5 May 2025, UPC CoA 634/2024, Meril v SWAT Medical. para. 19). For the purposes of R. 355.2 RoP, the appellant is regarded as the claimant in the appeal proceedings. This means that R. 355.2 RoP does not apply in appeal proceedings when a decision by default is requested by the respondent against the appellant because the appellant failed to take a step within the time limit foreseen in the RoP or set by the Court or failed to appear at an oral hearing pursuant to R. 355.1 (a) and (b) RoP. This follows from the fact that it is the appellant who is seeking the “order” or “remedy” referred to in R. 355.2 RoP, namely 4 by requesting that the Court of Appeal set aside the impugned order or decision. This is particularly pertinent in cases where the defendant is the appellant and has not provided security for costs. If the respondent on appeal who was the claimant before the Court of First Instance (CFI) were required to present facts in support of the judgment being upheld, the purpose of providing security for costs in the appeal proceedings would largely be defeated. Even though the appellant has not provided security for costs, the respondent would still be required to file a Statement of response, incurring additional costs. As established in the order for the provision of security by the appellant, there is a risk that these costs will not be reimbursed. It is precisely from this risk that the respondent is to be protected (see CoA, 7 April 2026, UPC CoA 21/2026, Microsoft v Suinno II, para. 17). For this reason, it is not necessary to consider the merits of the appeal pursuant to R. 355.2 RoP and no reason to do so under R. 357.2 RoP. 18. On 7 April 2026, the Court of Appeal expressly notified Suinno that, pursuant to R. 158.5 RoP, a decision by default may be given in accordance with R. 355 RoP if it failed to provide the security within the time stated. 19. Suinno has not provided security for costs, whether all or part of it, within the three-week period. 20. When exercising its discretion, the Court shall ensure that proceedings are organized based on the principles of fairness and equity (RoP, preamble para. 2) in the most efficient and cost effective manner (RoP, preamble para. 4) and must consider the balance of interest of the parties. 21. The effectiveness of security for costs ordered under R. 158 RoP is ensured by the power granted to the Court under R. 158.5 RoP to give a decision by default if the party bound to provide security for costs fails to do so. It is only under exceptional circumstances that the Court may derogate from this general rule (Microsoft v Suinno I, para. 24). Suinno has not put forward any reasons why no decision by default should be given under R. 158.5 and R. 355.1(a) RoP. 22. It should also be reminded that the principle of fairness and equity is further reflected in the Rules of Procedure to the benefit of the party against whom a decision by default has been given since that party, once a decision by default has been given, may lodge an Application to set aside that decision within one month of service of the decision (R. 356 RoP). Costs 23. Since this decision closes the revocation action, the Court of Appeal shall decide on costs. 24. As the unsuccessful party, Suinno shall be held to bear the costs of the appeal proceedings. ORDER The Court of Appeal I. gives a decision by default against Suinno; II. dismisses the appeal; III. orders Suinno to bear the costs of the appeal proceedings. A party against whom a decision by default has been given may lodge an Application to set aside that 5 decision within one month of service of the decision (R. 356.1 RoP). A further decision by default shall be final (R. 356.3 RoP). Issued on 22 May 2026 Rian Kalden, presiding judge and legally qualified judge Patricia Rombach, legally qualified judge and judge-rapporteur Ingeborg Simonsson, legally qualified judge Steven Kitchen, technically qualified judge Udo Matter, technically qualified judge

Key Holdings

• A default judgment in appeal proceedings, when requested by the respondent due to appellant's failure to provide security, does not require the respondent to justify the merits of their case.
• The rule for default judgments (R. 357.3 RoP) is applicable when an appellant fails to provide security for costs, even if not explicitly mentioned as an example.
• Failure to provide ordered security for costs can lead to a default judgment against the appellant.
• The Court of Appeal's decision on default judgment for failure to provide security is considered well-reasoned and logical.

Tags

• Default Judgment
• Security for Costs
• Appeal
• Procedural Law
• Access to Justice

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