UPC-CoA-71/2026 – NST v Qualcomm
- Court
- Court of Appeal
- Date
- Sector
- Electronics/SEP
- Decision Type
- PROCEDURAL
Expert Commentary
Appeal term Facts 1. On 11 March 2026, the LD Munich dismissed the infringement claim and the counterclaim for revocation. 2. On 11 May 2026, NST lodged an appeal against the decision on infringement. 3. On 15 October 2026, Qualcomm lodged its Statement of Response and a cross-appeal with respect to the dismissal of its counterclaim for revocation. The JR 1. The Judge-Rapporteur (“JR”) wondered if Qualcomm’s appeal is timely filed as a counterclaim for revocation is a separate case meaning that Qualcomm would have had to appeal within two months after the decision of the LD. 2. The JR asked the parties to comment. Comment 1. I hope that the Court of Appeal will take a more realistic than formalistic approach. A counterclaim for revocation is filed as a defence against an infringement case initiated by the patentee. If the Court rejects the infringement claim on the basis of other defences, then appealing a negative decision with respect to the counterclaim makes sense only if the patentee appeals the infringement decision. However, for now, I advise all representatives in the same situation to file a timely appeal on the condition that they will proceed if the patentee appeals. 2. The hope I express will in all likelihood not materialize because the Court of Appeal has already decided with regard to the conditional counterclaim for revocation that you have to appeal within the appeal term, should the claimant appeal.
Key Holdings
- The Judge-Rapporteur raised whether a cross-appeal regarding the dismissal of a counterclaim for revocation was timely filed, noting that a counterclaim for revocation constitutes a separate case.
- Because a counterclaim for revocation may be treated as a separate case, an appeal against its dismissal may need to be lodged within two months of the Court of First Instance decision.
- The Judge-Rapporteur invited the parties to submit comments on the admissibility and timeliness of the cross-appeal.
Tags
- Appeal term
- Counterclaim for revocation
- Cross-appeal
- Time limits