Re-establishment of rights is governed by Rule 320 of the Rules of Procedure (RoP) of the UPC. Rule 320.1 RoP reads as follows (emphasis added):

"Where a party has failed to observe a time-limit set by these rules or the court for a cause which, despite all due care having been taken by the party, was outside his [sic] control and the non-observance of this time limit has had the direct consequence of causing the party to lose a right or means of redress, the relevant panel of the court may upon the request of that party re-establish the right or means of redress."

All due care 

In Heraeus v Vibrantz (UPC_CFI_1510/2025) the Munich Local Division granted a request for re-establishment of rights with respect to the filing of an application for a cost decision (Rule 151 RoP).

In this case the Munich Local Division had issued a decision in which it was decided that the defendant bear 40 per cent and the claimant bear 60 per cent of the costs. While the defendant filed their application for a cost decision in time, the claimant failed to meet the deadline.

The Munich Local Division found the reason for the missed time limit to be credibly presented as being due to an (incorrect) legal assessment by the claimant’s representative that, since the claimant was the net payer as a result of the cost ratio, they did not have to submit their own application for a cost decision.

When deciding how to interpret the “all due care” standard the Munich Local Division echoed the Hamburg Local Division’s decision in Lionra Technologies v Cisco Systems (UPC_CFI_58/2024) which stated that said standard must be interpreted “autonomously”. The Munich Local Division stated that the requirement was, “in principle met if the party had taken all reasonable precautions to enable it to meet the deadline and the deadline was ultimately missed for a reason beyond the party’s control”.

It thus seems that Local Divisions of the UPC are reluctant to automatically adopt the strict European Patent Office (EPO) test which deems a party to have exercised all due care only if non-compliance with the time limit resulted either from exceptional circumstances or from an isolated mistake within a normally satisfactory monitoring system.

In this case the Munich Local Division was keen to point out that inadequate knowledge of the law would generally not be sufficient grounds for re-establishment of rights. However, exception was taken in this case since the Munich Local Division considered the RoP to be unclear on whether both parties are required to lodge an application for a cost decision within the time limit where a cost ratio has been determined. The Munich Local Division also pointed to the lack of established case law and literature on this particular subject.

An insight into circumstances which may not be considered to satisfy the all due care requirement was provided in Amycel v Szymon Spyra (UPC_CFI_499/2024).

In this case the deadline for filing a statement of defence was 25 February 2025 but the representative submitted said statement on 04 March 2025, along with an application for re-establishment of rights. The request stated that the representative had fallen ill on the evening of 24 February and was only able to resume work on 28 February. The request also included the argument that no other representative at the firm could have completed the statement due to factors including the length of the statement of claim, the number of exhibits and other representatives of the firm lacking access on UPC CMS.

The Hague Local Division found the representative not to have taken all due care to avoid the possibility that his incapacity would lead to the deadline being missed. It also suggested that the statement of defence was not almost finalised on 24 February 2025 because it was not uploaded immediately after the representative recovered on 28 February 2025, being filed instead several days later, on 04 March 2025.

The Hague Local Division highlighted that the representative had not demonstrated all due care due to the failure to involve other representatives from the firm in the proceedings. It pointed to the team function of the UPC CMS that had been available for more than a year and established EPO case law which dictates that even a one-person office should make appropriate provisions to ensure the observance of time limits in the case of absence through illness.

Whilst these decisions have all been made at first instance, and are thus not binding on other divisions of the UPC, they still provide useful early insights on how the all due care threshold is being interpreted at the UPC.

Re-establishment of rights or extension of a time limit?

Courts of the UPC are also having to consider the applicability of retroactive requests for extensions of time limits (Rule 9.3(a) RoP) as opposed to requests for re-establishment of rights (Rule 320 RoP) in the case of missed deadlines.

In Angelalign v Align Technology (UPC_CoA_37/2026) and Optopol v Topcon (UPC_CoA_56/2026) the UPC Court of Appeal dismissed requests for discretionary review of orders from first instance decisions which had retroactively extended time limits pursuant to Rule 9.3(a) RoP.

In UPC_CoA_37/2026 the applicant had submitted a reply to an objection to application for provisional measures on the day of the deadline, which had turned out to be for the wrong case. The applicant filed the reply in relation to the intended case seven days later when they were alerted to their mistake.

In UPC_CoA_56/2026 the respondent had missed the deadline for filing a reply to the statement of defence, a defence to the counterclaim for revocation, and an application to amend the patent.

Rule 9.3 of the RoP reads as follows: “Subject to paragraph 4, on a reasoned request by a party, the court may: (a) extend, even retrospectively, a time period referred to in these Rules or imposed by the court; and (b) shorten any such time period.”

In both cases the Court of Appeal found that the orders issued at first instance were not “manifestly incorrect”.

Here it was stated that Rule 320 RoP (re-establishment of rights) concerned situations in which a party loses a (substantive) right because of missing a time limit and would therefore be relevant if a time limit was missed that related to completely new proceedings or to applications made after the conclusion of proceedings. However, in cases where failure to meet a time limit does not result in a loss of rights, the extension of a deadline in ongoing proceedings should be governed by Rule 9.3 (a) RoP.

The Court of Appeal also held that the Local Division’s assumption that a retroactive extension of the time limit is also possible even if the request for said extension was submitted after the time period has expired was not “obviously wrong”.

A conclusive assessment of the hierarchy of Rules 320 and Rule 9.3 RoP, for at least the case of a missed deadline for the application for a cost decision, was provided in Hanshow v VusionGroup (UPC_CoA_618/2024). In this case the Court of Appeal made it clear that failure to meet the time limit for application for a cost decision can only be remedied through re-establishment of rights (R 320 RoP).

While the court highlighted that nothing in the RoP precludes the extension of the one-month time limit for applying for a cost decision, Rule 9 RoP “must be understood to apply to pending proceedings”.

Thus, since the substantive right of a successful party to seek a cost decision elapses upon the expiry of the one-month time limit under Rule 151 RoP, Rule 9 RoP must not apply.  This finding was confirmed in UPC CoA 380/2025.

Takeaways

It remains to be seen whether the UPC will adopt the same standard as the EPO for the assessment of “all due care”.

It nevertheless seems clear that the courts will want to see evidence of an effective deadline management system and will not accept illness of a representative in and of itself as a suitable reason for a missed time limit.

In situations where a party has lost a substantive right because of missing a time limit, such as the time limit for applying for a cost decision, re-establishment of rights is the suitable approach since the court is only able to extend deadlines (Rule 9.3(a) RoP) during pending proceedings. However, if in doubt it would seem prudent to request both an extension and re-establishment of rights in the alternative.

Case details at a glance

Jurisdiction: UPC
Decision Level: Munich Local Division
Parties: Heraeus Electronics GmbH & Co KG v Vibrantz GmbH 
Citation: UPC_CFI_1510/2025
Date: 13 January 2026
Decision (PDF): dycip.com/upc-cfi-1510-2025

Jurisdiction: UPC
Decision Level: Hamburg Local Division
Parties: Lionra Technologies Ltd v Cisco Systems GmbH and Cisco Systems Inc
Citation: UPC_CFI_58/2024
Date: 19 February 2025
Decision (PDF): dycip.com/upc-cfi-58-2024

Jurisdiction: UPC
Decision Level: The Hague Local Division
Parties: Amycel LLC v Szymon Spyra
Citation: UPC_CFI_499/2024
Date: 21 October 2025
Decision (PDF): dycip.com/upc-cfi-499-2024 

Jurisdiction: UPC
Decision Level: Court of Appeal
Parties: Angelalign Technology (Europe, France, Germany & Italy) v Align Technology Inc
Citation: UPC_CoA_37/2026
Date: 10 March 2026
Decision (PDF): dycip.com/upc-coa-37-2026

Jurisdiction: UPC
Decision Level: Court of Appeal
Parties: Optopol Technology Sp z oo v Topcon Corporation
Citation: UPC_CoA_56/2026
Date: 28 April 2026
Decision (PDF): dycip.com/upc-coa-56-2026 

Jurisdiction: UPC
Decision Level: Court of Appeal
Parties: Hanshow (Technology Co Ltd, Germany GmbH, France SAS, Netherlands BV) v VusionGroup SA
Citation: UPC_CoA_618/2024
Date: 06 June 2025
Decision: dycip.com/upc-coa-618-2024