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 Case Law
Rule 13: Contents of the Statement of claim

Court of First Instance - Lisbon (PT) Local Division, Order dated 16/08/2024, Arvato Netherlands B.V., Digital River Ireland Ltd., ASUSTek Computer Inc. v. Telefonaktiebolaget LM Ericsson (Case/ Registry number: ORD_46326/2024, ORD_46326/2024)
Example of decision on the need to inform about any action for revocation or declaration of non-infringement pending before the central division and the date of any such action: "In light of that purpose, the Court considers, contrary to the Applicant, that R. 13.1(h) RoP requires the indication of the actions before other courts or authorities related to the patent in order for the Court to assess their relevance within the proceedings. The Court further notes that, in case of a possible ex parte proceedings, R. 206.4 RoP demands even higher requirements – any pending proceedings and/or any unsuccessful attempt in the past to obtain provisional measures in respect of the patent.
11 Noncompliance with providing the information required by R. 13.1(h) RoP is to be assessed by the Registry in accordance to R. 16.2, 16.4 as well as 208 RoP which in that event invites the claimant to correct the deficiencies within 14 days of service of such notification and informs the claimant that if the claimant fails to correct the deficiencies a decision by default may be given, in accordance with Rule 355 RoP. In any case, adecision by default would only be admissible after the applicant had the opportunity to correct it and failed to do so (R. 16.3 and 5 RoP). And, regarding the correction of deficiencies, there is no legal impediment preventing the compliance with R. 13.1(h) RoP by the Applicant on its own initiative as soon as possible, particularly when urgent procedures are to be considered."

Court of First Instance - Brussels (BE) Local Division, Order dated 19/07/2024, OrthoApnea S.L, v. (Case/ Registry number: ORD_42503/2024, ORD_42503/2024)
Example of decision on Front Loaded procedure: "Developing an equivalence argumentation in the Reply to Statement of Defence is in principle allowed provided if in line with (i) the normative purpose of Rule 13 RoP, (ii) the procedurally-evolutive conduct of the judicial dispute, and (iii) the rights of defence, in particular in this case the possibilities of defence for a party confronted with new arguments, facts and an amended petition on this basis, can be ensured."

Court of First Instance - Brussels (BE) Local Division, Order dated 08/07/2024, OrthoApnea S.L. (Case/ Registry number: App_37702/2024, ORD_37783/2024)
Example of decision on conditions to put forward new facts and arguments in a plaintiff’s reply to statement of defence: "R. 13 RoP and the Procedural Efficacy of Judicial Litigation allow a plaintiff, in his Reply ("Reply to Statement of Defence") in response to the Defendant’s Statement of Defence ("Statement of Defence"), to put forward new facts and arguments and, if necessary, to bring his petition in line with them if (i) they do not alter the subject matter of the proceedings and (ii) if they can be brought into line with what a normal and prudent person (placed in the same circumstances) would be expected to do . If the subject matter of the proceedings is affected, R. 263 RoP should be applied."

Court of First Instance - Munich (DE) Local Division, Order dated 27/05/2024, NEC Corporation (Case/ Registry number: UPC_CFI_498/2023, ORD_26434/2024)
Example of decision on the grant of a deadline extension: “According to the jurisprudence of the Court of Appeal (UPC_CoA_320/2023; APL_572929/2023) it is sufficient to constitute a reasoned request by a defendant for an extension of the terms for lodging the Statement of defense, if a claimant did not upload the Annexes simultaneously with the Statement of claim in the CMS and thus did not comply with Rule 13.2, and as a consequence these Annexes have not been available when the representative of the defendant accessed the CMS.
This case law applies equally if wrong Annexes were provided with the Statement of Claim. The following order is therefore issued."

Court of Appeal - Luxembourg (LU), Order dated 13/10/2023, Sanofi-Aventis Deutschland GmbH, Sanofi-Aventis Groupe S.A., Sanofi Winthrop Industrie S.A., Regeneron Pharmaceuticals Inc. v Amgen, Inc. (Case number APL_572929/2023 UPC_CoA_320/2023, ORD_580110/2023)
Example of decision regarding the date of the notification of a request: “14. The Court of Appeal therefore agrees with LKM that the fact that the annexes were not served on Sanofi at the same time as the motion is irrelevant to the determination of the date of service in this case. Sanofi has not shown that the Statement of Claim (without the annexes) did not meet the requirements of the Service Regulation and Rule 13.1. In accordance with rules 19.1 and 23 of the Rules of Procedure, the time limit for opposition or response therefore began to run on the date of service of the application, 11 or 19 July 2023.”

Court of Appeal - Luxembourg (LU), Order dated 13/10/2023, Sanofi-Aventis Deutschland GmbH, Sanofi-Aventis Groupe S.A., Sanofi Winthrop Industrie S.A., Regeneron Pharmaceuticals Inc. v Amgen, Inc. (Case number APL_572929/2023 UPC_CoA_320/2023, ORD_580110/2023)
Example of decision on the extension of time limits for the defendant in relation to the plaintiff’s delay: “32. Unless special circumstances of the case, which must be explained by the applicant, justify a different time limit, the time limits referred to in Rules 19.1 and 23 of the Implementing Regulations must be extended by the period during which the annexes were not available, contrary to Rule 13.2 of the Implementing Regulations.
33. The fact that such an extension of time results in delay and is contrary to the interests of the applicant (regularly in infringement litigation) cannot lead to a different conclusion. It is within the power of the claimant to comply with Rule 13.2. Accordingly, the disadvantages associated with non-compliance with the Rule should be suffered by the claimant alone and not by the defendant.”

Court of First Instance - Munich (DE) Local Division, Order dated 29/08/2023,Sanofi-Aventis Deutschland GmbH v. Amgen, Inc. (Case number UPC_ CFI_14/2023, ORD_566193/2023)
Example of decision on the timing of the actual notification with annexes available/downloaded at a later date: “The fact that the plaintiff only uploaded the attachments to the CMS at a later date, namely on 10 August 2023, does not change these dates of service.”
“Under Rule 13(1)(m) of the Rules of Procedure, the statement of claim must contain the evidence adduced, if available, and any other evidence offered. Pursuant to Rule 13 No. 2 of the Rules of Procedure, the plaintiff shall attach to the statement of claim a copy of each of the documents referred to in the statement of claim.
b. The present statement of claim fulfils these requirements.
The reference in the application to the intention to submit annexes at a later date did not yet constitute evidence, insofar as it is embodied in annexes, within the meaning of the Rule 13 No. 1 m RoP "brought forward". This announcement also did not constitute a "reference" within the meaning of Rule 13 No. 2 of the Rules of Procedure. Rather, it merely makes the other party aware that it is in possession of these annexes and will submit them at a later date. A statement of claim without these annexes is complete before this point in time even if these annexes are not attached. Consequently, the statement of claim alone must then be submitted and served.”
“All these reasons speak in favour of the procedure chosen here. The requirement to grant the defendant a sufficient right to be heard, also with regard to attachments submitted later, may have to be met by fine-tuning the deadline regime. Since there is no question of a default decision in the present case, it is also irrelevant in the present case whether the defendant was able to understand the allegation of patent infringement made against it solely on the basis of the statement of claim and to consider whether it wishes to defend itself against this.”