Headwater Research v Motorola Mobility (CFI, ORD_39544/2024, 11 September 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 11 September 2024 (UPC_CFI_149/2024, ACT_16251/2024, ORD_39544/2024), the judge-rapporteur of the Munich Local Division (Dr Voß), in Headwater Research’s infringement action on EP 3 110 069 against Motorola Mobility and other defendants, refused to find an absolute bar to proceedings against the fifth defendant, named as « Lenovo EMEA DC », but replaced it with Flextronics International Europe B.V., on which the Statement of claim is to be served afresh.

Question

Must a claim directed against a non-existent entity, or one lacking capacity, be dismissed, or may the designation of the defendant be corrected or replaced?

Decision

Rule 362 RoP confers a discretion, and whether lack of capacity under Art. 46 UPCA is an absolute bar is left open. Correcting a misnomer requires that it was clear, to the defendant and the court, who was meant. The name « Lenovo EMEA DC », the reference « c/o Flextronics BV » and an address shared by several companies did not clearly point to Flextronics International Europe B.V., and the claim described the defendant as part of the Lenovo group. A change of party is, however, allowed by analogy with Rule 305.1(c) RoP, since the Rules make no provision for this situation and dismissal would force a new and costlier action, contrary to the principles of proportionality and fairness in the Preamble. The new defendant is not bound by the state of the proceedings: service is not established and it has the full time limits, including for a counterclaim for revocation.

Key points for practice

• Practical point: a mistake as to the identity of a defendant can be cured by a change of party by analogy with Rule 305.1(c) RoP, but the substituted company then has full time limits running from fresh service.

Provisions applied

Agreement on a Unified Patent Court

Art. 46

Rules of Procedure

Preamble, point 2, and Rules 305, 362 and 363.1

Case law cited

Court of Appeal, 3 April 2024, APL_588420/2023, UPC_CoA_433/2023

Prepared by Dhenne Avocats from the official decision, consulted on 10 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.