The Standing Judge of the Court of Appeal on a Discretionary Review Request – limits of the power of the Judge Rapporteur 

Case Overview

In a recent case, the Unified Patent Court of Appeal addressed the admissibility of a request for discretionary review. The request was made by Netgear Inc. and its subsidiaries against Huawei Technologies Co. Ltd., challenging a procedural decision in their ongoing patent dispute concerning EP 3 611 989.


Procedural Background

The case revolves around a preliminary objection filed by Netgear under Rule 19 of the Rules of Procedure (RoP). The Judge Rapporteur (JR) at the Court of First Instance (CFI) decided to handle this objection within the main proceedings. Dissatisfied, Netgear requested a panel review of this decision under Rule 333.1 RoP, which the JR subsequently deemed inadmissible. Netgear then sought a discretionary review by the Court of Appeal under Rule 220.3 RoP.


Legal Framework and Analysis

The difficulties in this case lie in the interpretation of various RoP rules, particularly regarding the scope of a JR’s decisions and their reviewability. Rule 333.1 RoP stipulates that a party may request a panel review of a case management decision or order made by the JR. The standing judge highlighted that a request for discretionary review to the Court of Appeal is typically permissible only if an appeal of a panel's order is refused.


The Order of the Court of Appeal

The standing judge found that the decision of the judge rapporteur to handle the admissibility of the review request himself, rather than referring it to a panel, effectively precluded Netgear from seeking a discretionary review. However, she deemed this approach incorrect, as it circumvented the intended procedural safeguards and rights of the parties. Therefore, she allowed Netgear's request for discretionary review concerning the JR’s decision from December 11, 2023, but clarified that the appeal would not extend to the original decision of October 30, 2023. If the appeal against the December order is successful, the panel of the CFI will then review the October decision.



The standing judge ruled the request for discretionary review admissible and granted Netgear permission to appeal the order dated December 11, 2023. The case was referred to the President of the Court of Appeal for panel assignment.


Our Takeaways

  • Power of the Judge Rapporteur: The case seems to limit the power of the Judge Rapporteur.
  • Review of Decisions of the Judge Rapporteur: The case emphasizes the importance of proper procedure in reviewing decisions made by a Judge Rapporteur within the UPC system.
  • Appeal Admissibility: The present order highlights that procedural “missteps” by the Judge Rapporteur of the first instance can lead to the admissibility of an appeal, safeguarding fair legal processes.