Appeal reveals tricky deadlines for orders contained in decisions

Network System Technologies LLC v Qualcomm Incorporated et al.

UPC-CoA-69/2026, UPC-CoA-71/2026, UPC-CoA-72/2026, decision of 17 August 2026

This Court of Appeal decision has revealed a complicated and rather confusing interplay between different appeal deadlines when an Order of the type referred to in Rule 220(1)(c) is contained in the Decision on the merits.

Background – the rules on appeal deadlines

The UPC Rules of Procedure treat Decisions, which are the final substantive decision at the end of proceedings (Rule 220(1)(a)), or any other judgment which terminates proceedings (Rule 220(1)(b)), differently from Orders (Rule 220(2)), which are adjudications of procedural issues along the way, and also treats certain Orders, which this Decision calls “privileged orders”, in a special manner (Rule 220(1)(c)).

Decisions are appealable within two months of service of the Decision (Rule 224(1)(a)).

Most Orders are not separately appealable as of right, and they can either be appealed with the final Decision, with the same two-month deadline, or they can be appealed with permission within 15 days of the decision granting permission (Rule 220(2)).

However, the privileged Orders referred to in Rule 220(1)(c), namely those referred to in Articles 49(5) (change of language of proceedings), 59 (Order to produce evidence), 60 (evidence preservation and inspection Orders), 61 (asset freezing Orders), 62 (provisional injunctions) or 67 (Order to communication information) of the UPCA do not require permission and the deadline for appeal is 15 days from service of the Order (Rule 224(1)(b)).

The case

In each of the underlying three cases before the LD Munich, Network System Technologies LLC (NST) had sought a Rule 190 Order requiring Qualcomm to produce source code and technical documentation related to its Network-on-Chip (NoC) technology.  This request was rejected, but this rejection was contained in the Decisions dismissing the infringement actions (and also the revocation counterclaims) for two of the cases, and revoking the patent in one case.  The Decisions indicated a two-month period for appeal in the pro forma information at the end.

The Decisions were each appealed at the two-month time limit with the Grounds following two months later.  In the Grounds the rejection of the Rule 190 requests was challenged, and at the same time new Rule 190 requests were filed.

The Decision

The Court of Appeal considered that the Rule 190 Order was an order referred to Article 59 UPCA and therefore the deadline for appeal was that specified in Rule 224(1)(b), namely 15 days.  Therefore, the challenge to the Order in the substantive appeal was late filed.  The Court considered that the 15-day deadline applied separately to the Rule 190 Order, notwithstanding that it was contained within the substantive Decision.

Moreover, the Court of Appeal considered that the late filing was not an error that could be excused.  The underlying Decisions were understood by the Court to have omitted the Rule 190 appeal deadline alongside stating the correct substantive appeal deadline, rather than mis-stating the Rule 190 appeal deadline itself.  The Court held that “It must have been clear to NST that an appeal period of 15 days applied to privileged orders, even if contained in a decision in the main proceedings.”

Therefore, the appeals insofar as they related to the Rule 190 issue were held inadmissible.

Moreover, the Court of Appeal held that the new Rule 190 requests were also inadmissible.  Even though such a request can be filed at any time, the Court considered that a refiled request “requesting substantially the same evidence to be produced, would only be admissible on appeal if justified by new facts that could not reasonably have been available during the first instance proceedings”.  Otherwise, the outcome would be a circumvention of the appeal mechanism.

Comment

This decision illustrates that that the UPC rules on appeal deadlines are complex and can be hard to interpret.  The Court of Appeal is applying the rules strictly, even if an error might arguably be in part attributed to an error or omission in the Decision under appeal, as UPC representatives are expected now to understand and be familiar with the rules.