Network System v Qualcomm (CoA, UPC_CoA_69/2026, 17 August 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In an order of 17 August 2026 issued in the joined appeals UPC_CoA_69/2026, UPC_CoA_71/2026 and UPC_CoA_72/2026, the UPC Court of Appeal rejected as inadmissible the appeals of Network System Technologies LLC (NST) against the Munich Local Division’s dismissal of its requests for the production of evidence (Rule 190), together with the fresh requests made on appeal. A ruling on a Rule 190 request remains an order appealable within 15 days, even where it forms part of a decision on the merits. The lesson for practitioners is plain: appeal deadlines must be worked out ruling by ruling, and a wrong indication of the time limit at first instance will not rescue a late appeal.

Facts and procedure

On 4 March 2024 NST brought infringement actions against Qualcomm Incorporated, Qualcomm Technologies, Inc. and Qualcomm Germany GmbH on EP 1 552 399, EP 1 552 669 and EP 1 875 683. With its reply of 4 February 2025, amended on 8 April 2025, it applied under Rule 190 for production of Qualcomm’s source code and technical documents. In three decisions of 11 March 2026, the Munich Local Division dismissed the infringement actions and the Rule 190 applications. NST appealed on 11 May 2026 and, with its statements of grounds of 13 July 2026, filed new Rule 190 applications with the Court of Appeal. On 21 July 2026 the judge-rapporteur invited the parties to comment on admissibility. A single order is issued in the three joined appeals.

The applicable law

Article 73(2)(a) UPCA and Rule 220.1(c) make orders under Articles 49(5), 59 to 62 and 67 UPCA appealable within 15 days of service (Rule 224.1(b)), whereas decisions on the merits carry a two-month period. The time limit for appeal cannot be extended (Rule 9.4). On appeal, Rule 222.2 governs requests, facts and evidence not submitted at first instance.

Question

Does the dismissal of a request for production of evidence contained in a decision on the merits follow the two-month appeal period of that decision, and may the request be renewed before the Court of Appeal?

Decision

A ruling on a Rule 190 application is an order under Rule 220.1(c), appealable within 15 days, whether issued separately or embedded in a document headed « Decision » (paragraphs 15 and 19). It does not take on the character of the decision containing it (paragraphs 23 and 24). The time limit is mandatory (paragraph 34). Excusable error is available only in exceptional circumstances, notably where the court’s own conduct misled a diligent party (paragraph 36), since AIM v Supponor clarified Rule 220.1(c), a wrong indication of the time limit is no longer enough on its own (paragraphs 37 and 44). NST had not shown the diligence expected of it (paragraph 46).

The new applications sought substantially the same evidence, Qualcomm’s source code. Changing the disclosure arrangements did not alter what was sought (paragraph 55). A substantially identical request already decided without new facts is not a request not submitted at first instance within Rule 222.2: a timely appeal was the only remedy (paragraph 58). A renewed request is admissible only if based on new facts that could not reasonably have been relied on at first instance (paragraph 59), Rule 222.2 then applying by analogy (paragraph 60). Whether a Rule 190 application may be made for the first time on appeal was left open (paragraph 54).

Key points for practice

• A ruling under Article 59 UPCA and Rule 190 remains an order appealable within 15 days, even when embedded in a decision on the merits (paragraphs 15, 19 and 24).
• A wrong or incomplete indication of the time limit by the first instance court is not, by itself, an excusable error (paragraph 44).
• A dismissed request for production of evidence may be renewed on appeal only on the basis of new facts not reasonably available at first instance (paragraph 59).
• Practical point: on receipt of a merits decision, identify every ruling falling within Rule 220.1(c) and lodge the corresponding appeal within 15 days, rather than relying on the two-month period.

Provisions applied

Agreement on a Unified Patent Court

Arts 59 and 73(2)(a) and (4)

Rules of Procedure

Rules 9.4, 190, 220.1, 222.2, 224.1, 242.2, 320 and 353

Case law cited

Court of Appeal, AIM Sport Development v Supponor Italia, 26 April 2024, Court of Appeal, Speed Care Mineral v Teleflex Life Sciences II, 10 June 2026

Related decisions

• Network System v Qualcomm Incorporated, 11 March 2026, Munich Local Division decision on the merits (UPC_CFI_63/2024) under appeal.

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.