Chainzone (intervener) & Strabag v Swarco (PC-CoA-001/2025, (UPC_CoA_70/2025))
Decision date:
27 November 2025
Osborne Clarke summary
- At first instance, Swarco sued Strabag in the Vienna LD for infringement of its patent concerning imaging display boards. Chainzone had applied and was granted leave to intervene on behalf of Strabag. The Vienna LD upheld the infringement action in its entirety. Both Strabag and Chainzone appealed. The oral hearing had been scheduled for 4 December 2025. On 20 November 2025, Strabag announced that it was withdrawing its appeal pursuant to a settlement agreement with Swarco. Swarco agreed to the withdrawal of the appeal. Chainzone had not been involved in the settlement but agreed to the withdrawal of Strabag's appeal provided that its own appeal would be heard and decided; it would not agree to the withdrawal if not.
- The Court of Appeal held that Strabag's withdrawal of its appeal was admitted in accordance with Rule 265.1 RoP. Under that rule, a claimant may request the withdrawal of its action provided that no final decision in the action has been issued. This applies equally to withdrawals of appeals. However, Rule 265.1 notes that a withdrawal is not permitted if the other party has a legitimate interest in the court ruling on the action. In this case, Swarco agreed to the withdrawal and it was only the interest of Swarco, and not Chainzone as intervener, that was decisive.
- Rule 315.4 RoP provides that an intervener is treated as a party in the proceedings unless the court orders otherwise. Rule 313.2 RoP requires that an application to intervene be made in full or partial support of a claim sought by one of the parties. The Court of Appeal concluded that because interveners may only support the claims of a party, they cannot contradict the actions and statements of the party they support. This rendered Chainzone's objection to Strabag's withdrawal inadmissible.
- The court held that procedural actions by an intervener are only admissible insofar as they serve to support the applications made by one of the parties. This means that the intervener has no position independent of the party it supports. If both the party and the intervener supporting it have lodged appeals, this constitutes a single appeal, which the intervener cannot continue if it is withdrawn by the supported party. In such circumstances, the intervener's appeal becomes moot in accordance with Rule 360 RoP.
- Chainzone raised concerns about the binding effect of the first instance decision. The operative part of the contested decision named Chainzone as the manufacturer of the contested embodiments and established patent infringement. Chainzone argued that this finding would become final if its appeal was not decided, excluding it from raising objections to the finding of patent infringement. Chainzone also noted that it was directly affected by the costs order, as both Chainzone and Strabag were obliged to reimburse Swarco for certain costs of the dispute.
- The Court of Appeal addressed these concerns through its interpretation of Rule 316.3 RoP, which provides that an intervener is bound by the decision in the action. The Court of Appeal held that if an intervener is prevented by the withdrawal of the main party's appeal from bringing about a review of the first instance decision in terms of fact and law, it may invoke this in any subsequent proceedings against both parties. Applying the principles of proportionality, flexibility, fairness and equity from the preamble to the RoP, the Court of Appeal concluded that the binding effect of decisions against interveners pursuant to Rule 316.3 RoP can only apply insofar as the intervener is not restricted in its conduct of the proceedings.
- Accordingly, the court confirmed that Chainzone could argue in subsequent proceedings (including border seizure proceedings) that the binding effect does not apply because the appeal would have been successful on the grounds asserted by it in the appeal proceedings, including with respect to the finding that Chainzone was the manufacturer and that the contested embodiments infringed the patent.
- The Court of Appeal also addressed the costs aspect of the first instance decision. If it transpires in subsequent proceedings that Chainzone's grounds for appeal would have been successful, Chainzone would be entitled, on the basis of an application analogous to Rule 354.2 RoP, to demand reasonable compensation from Swarco for the damage caused by the enforcement.
- Applying the principle that an intervener is to be treated in the same way as the main party it supports with regard to costs, and noting that Strabag had placed itself in the position of the unsuccessful party by withdrawing its appeal, the court ordered Chainzone to bear its own costs. Swarco and Strabag had agreed to bear their own costs of their legal representation and the court costs incurred in the appeal proceedings themselves.
Issue
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