1. Key takeaways
Discretionary review under Rule 220.3 RoP requires demonstrating manifest error or a fundamental question of law with systemic implications purely case.
The Court of Appeal confirmed the standard established in earlier decisions: discretionary review is available only where the contested order is manifestly erroneous or raises a fundamental legal question with broader implications for the uniform interpretation of the RoP. Questions tied exclusively to the specific facts of the case do not meet this threshold.
A commitment to withdraw a final damages claim does not preclude a provisional damages claim under R. 119 RoP if the applicable procedural order preserved that option.
The claimant agreed to withdraw its final damages claim and to determine the final amount separately under R. 125 RoP. However, the Procedural Order explicitly preserved the possibility of a provisional damages request, and the defendants had acknowledged this in their own pleadings, such that no broader waiver of all financial relief occurred.
A provisional damages claim first raised in the Reply is not automatically late under R. 9.1 and 13.1(k) RoP.
The Procedural Order expressly required the claimant to formally withdraw its final damages claim in its next pleading (the reply) making it reasonable to simultaneously introduce the provisional claim. The defendants already knew the underlying factual basis and had multiple subsequent opportunities to respond, including in their Rejoinder and, following leave under R. 36 RoP, in further submissions.
No separate formal application under R. 263 RoP was required, as the Procedural Order itself had already authorised the introduction of the provisional damages claim.
2. Division
Court of Appeal
3. UPC number
UPC_CoA_95/2026
4. Type of proceedings
Request for a discretionary review (RoP 220.3)
5. Parties
Applicants (Defendants 1 and 2 at first instance):
Adobe Inc.
Adobe Systems Software Ireland Limited
Respondent (Claimant at first instance):
KEEEX SAS
6. Patent(s)
EP 2 949 070
7. Jurisdictions
UPC
8. Body of legislation / Rules
R. 9.1, 13.1(k), 36, 119, 125, 220, 263, 333, 334 RoP
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
