Case Law
Rule 356: Application to set aside a decision by default

Court of First Instance - Paris (FR) Central Division - Seat, Order dated 31/03/2025, Bayerische Motoren Werke Aktiengesellschaft (Case/ Registry number: ORD_15677/2025, ORD_15677/2025)
Example of decision on setting aside a default decision: "4. The respondent filed an application pursuant to Rule 356 of the Rules of Procedure (‘RoP’) requesting the Court to set aside the decision by default. This application was dismissed by order issued by the panel on 9 January 2025 (no. ORD_58414/2024), which contains no provision regarding the obligation to bear the legal costs associated with the examined application.
5. The applicant argues that the absence of the decision in principle on the obligation to bear the legal costs “seems to be an obvious slip in the order” as Article 69 (1) of the Unified Patent Court Agreement provides that the unsuccessful party is ordered to bear the legal costs and the corresponding request was filed by the party.
[...] 12. Rule 356 (1) ‘RoP’ allows the defaulting party to lodge an application to set aside the decision by default. This application constitutes an internal procedural remedy – also referred to as an objection by Article 37 of the Statute of the Unified Patent Court – available to the party against whom a decision by default has been issued, allowing them to prevent it from becoming final and concluding the proceedings at first instance. This is achieved by asserting the reasons justifying the failure and, consequently, demonstrating the absence of the prerequisites for the decision by default.
13. As an internal proceeding of the main proceedings, it is not suitable for giving rise to a decision on the merits and, as such, does not require a decision on the obligation to bear the associated costs. The fact that this phase occurs after the issuing of a decision on the merits is irrelevant for this purpose, as it does not constitute an autonomous proceeding but rather serves the sole function of stabilizing and rendering final the first-instance decision. It follows that the costs incurred by the successful party in this step can be claimed and assessed within the proceedings for a cost decision related to the main proceedings which concluded with the decision on the merits, namely the decision by default."

Court of First Instance - Paris (FR) Central Division - Seat, Order dated 09/01/2025, ITCiCo Spain S.L. v. Bayerische Motoren Werke Aktiengesellschaf (Case/ Registry number: App_56176/2024, ORD_58414/2024)
Example of decision on interpretation requiring justification of a party’s default: "Although Rule 356 ‘RoP’ does not expressly state that the applicant must demonstrate that the default is not determined by its own fault, that is, that it was unable to comply with peremptory time limits or to appear at an oral hearing at which it is was duly summoned (except as provided for in Rule 116 and 117 ‘RoP’) due to reasons beyond its control, such a requirement is inherent in the provision that obliges the applicant to explain the reason for the default and, more generally, in the Unified Patent Court system.
9. Indeed, it is observed that the rationale of Rule 356 ‘RoP’ is to allow the party against whom a decision by default has been issued to argue before the Court who delivered the decision that the right of defence was violated due to the erroneous finding of the lapse of time or of the correctness of the summon at the oral hearing, and, in this way, to remedy such an error, "reopening" the proceedings and allowing the party to fully exercise its violated right of defence. (…) It follows that the requirements for setting aside a decision by default include the evidence that the default was not due to the party’s fault but was caused by unforeseeable circumstances or force majeure."