UPC-COA-0000040/2026

A counterclaim for revocation may be made conditional upon a finding of infringement because the UPCA and Rules of Procedure do not exclude that condition per se.

An unconditional request to make a revocation counterclaim conditional is treated as a limitation for which Rule 263.3 RoP applies by analogy.

An infringement action and a counterclaim for revocation are separate actions, so a condition linking the counterclaim to a finding in the infringement action is inter-procedural and must be challenged by a separate appeal rather than a cross-appeal.

Non-fulfilment of the condition limits the need for a merits decision on the revocation counterclaim but does not make the action cease to exist, not filed or withdrawn.

Unless the party expressly indicates otherwise, a condition requiring a finding of infringement by “the Court” refers to both the Court of First Instance and the Court of Appeal and therefore requires a final finding of infringement.

When a conditional revocation counterclaim becomes operative following a Court of Appeal finding of infringement, the Court of Appeal should as a rule decide the counterclaim rather than refer it back to the Court of First Instance.