ITCiCo Spain v Bayerische Motoren Werke (CFI, 9 January 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By an order of 9 January 2025 (UPC_CFI_412/2023), the Paris Central Division (panel 2, Judge Catallozzi as judge-rapporteur) dismissed ITCiCo Spain’s application to set aside the decision by default of 16 September 2024 given in the revocation action between it and Bayerische Motoren Werke (EP 2 796 333). The defence to revocation had not been filed in time. The order reads into Rule 356 a requirement that the defaulting party be free of fault.

Question

Must a party seeking to set aside a decision by default show that the default was not its fault, and does the illness of its patent attorney suffice?

Decision

Although Rule 356.2 is silent on fault, the required explanation must show that the time limit could not be met for reasons beyond the party’s control, such as unforeseeable circumstances or force majeure. The opposite reading would undermine procedural deadlines (paragraphs 8 to 13). The statement of claim was served on 25 November 2023, a letter of 15 November 2023 and the missing annexes making no difference (paragraphs 14 to 17). Aware by December 2023 that its European patent attorney was unavailable, the applicant, acting diligently, should have instructed another professional or sought an extension. The default was attributable to it (paragraphs 18 to 22).

Key points for practice

• Practical point: an adviser’s unavailability does not excuse a default where the party, informed in time, neither replaced the adviser nor applied for an extension.

Provisions applied

Rules of Procedure

Rules 116, 117 and 356, and recitals 2, 5 and 7 of the Preamble

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.