Volkswagen v Network System Technologies (CoA, 18 September 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By an order of 18 September 2024 (UPC_CoA_265/2024, UPC_CoA_267/2024, UPC_CoA_270/2024, UPC_CoA_275/2024, UPC_CoA_277/2024 and UPC_CoA_279/2024), the second panel of the Court of Appeal (R. Kalden, presiding judge and judge-rapporteur, I. Simonsson, P. Rombach) dismissed Volkswagen AG’s appeals against the Munich Local Division’s orders of 23 April 2024, which had rejected its preliminary objections and its Rule 361 requests in the three infringement actions brought by Network System Technologies LLC (NST). The court upheld the withdrawal of the opt-outs lodged by a UPC representative without producing a mandate, and confined Rule 361 to clear-cut cases. The order narrows two early lines of defence.

Facts and procedure

NST acquired from Philips EP 1 875 683, EP 1 552 399 and EP 1 552 669, which Philips had opted out of the UPC’s jurisdiction. NST withdrew the opt-outs and then sued Volkswagen (UPC_CFI_513/2023, UPC_CFI_514/2023 and UPC_CFI_515/2023) (paragraph 1). It claims damages for acts preceding the acquisition and for loss suffered in the United Kingdom and Northern Ireland, and provides a detailed claim chart for only one of the many allegedly infringing embodiments (paragraphs 2 to 4). The Local Division rejected the preliminary objections in part, deferred the remainder to the main proceedings and rejected the Rule 361 requests (paragraph 6).

The applicable law

Rules 19.5 and 20.2 allow the first-instance court either to decide the preliminary objection or to deal with it in the main proceedings. Rule 5.3(b) distinguishes a withdrawal of an opt-out lodged by a representative under Art. 48 UPCA from one lodged by any other person, who must attach a mandate. Under Rule 285 a representative need produce a written mandate only if ordered to do so. Rule 361 allows an action manifestly bound to fail to be dismissed. Rule 29(a) and (b) permits supplementary pleading in the reply. Rule 242.1 excludes a costs order on an order that is not final.

Question

Could the Local Division defer the jurisdictional objection concerning UK damages to the main proceedings, was the withdrawal of the opt-outs valid without a mandate being produced, and should the action have been dismissed under Rule 361 for lack of standing or substantiation?

Decision

Deferring the objection concerning loss in the United Kingdom and Northern Ireland lay within the Local Division’s discretion. It intended to decide validity and infringement first, damages being capable of determination later under Rule 125. No overstepping was shown in light of point 4 of the preamble to the Rules of Procedure (paragraphs 23 to 26).

NST’s statement that the lawyer who lodged the withdrawals held a mandate was admissible on appeal, since Volkswagen had made clear only at that stage that it disputed the existence of the mandate rather than the formalities (paragraphs 27 to 32). A UPC representative holds a position of trust and need not produce a written mandate unless ordered to (Rule 285), differences between the representatives on the EPO or national registers and the UPC representative prove nothing. The opt-outs were validly withdrawn and the UPC has jurisdiction (paragraphs 33 and 34).

As to Rule 361, the claimant must be heard and may remedy shortcomings in its statement of claim. Front-loading does not require it to anticipate every defence, and supplementary pleading in the reply is allowed (paragraph 36). Whether a claim is sufficiently argued and substantiated is for the main proceedings. Rule 361 is reserved for clear-cut cases (paragraph 39). A statement of claim detailing one embodiment and listing similar embodiments that infringe for essentially the same reasons is not manifestly without foundation (paragraph 41). No costs order was made on this interim order. The appeal costs will be included in the final decision, Volkswagen being the unsuccessful party (paragraphs 43 to 45).

Key points for practice

• The first-instance court may, as a matter of case management, defer to the main proceedings a jurisdictional objection concerning loss outside the Member States.
• A withdrawal of an opt-out lodged by a UPC representative does not require a mandate to be produced unless the court so orders.
• Rule 361 is no forum for a full debate on substantiation: it targets clear-cut cases only.
• Practical point: a statement of claim may detail one representative embodiment and list similar ones, with further detail following in the reply if infringement is disputed.

Provisions applied

Agreement on a Unified Patent Court

Art. 48 and 69

Rules of Procedure

Rules 5.3, 19, 20.2, 29, 125, 222, 242.1, 285 and 361

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.