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A guide to: Evidence -Step 1: Lodging the Application:

Written by Louise AMAR 23 September 2016

The tables below look into the prerequisites for lodging the Application for an order to preserve evidence or order for inspection.

 

Language of the Application
(Rule 192(4))
Where the Application is lodged before the main proceedings on the merits of the case:The Application shall be drawn up:
• In the official language or one of the official languages designated as languages of proceedings pursuant to Article 49(1) of the Agreement.
• In a language designated as language of the proceedings by a Contracting Member State pursuant to Article 49(2) of the Agreement.
• See also Rule 14.2,3,4 (For Contracting Member States that host a local or regional division for which several languages have been designated)
Where the Application is lodged after the main proceedings on the merits of the case:The Application shall be drawn up in the language of the proceedings.

 

Content of the Application (Rule 192 (2) & (3))
Particulars in accordance with Rule 13:

The claimant shall lodge the Application with the division chosen by him which shall contain:

• the name of the applicant, and, where the applicant is a corporate entity, the location of its registered office, and of the applicant’s representative;

• the name of the defendant, and, where the defendant is a corporate entity, the location of its registered office;

• postal and electronic addresses for service on the applicant and the names of the persons authorised to accept service;

• postal and, where available, electronic addresses for service on the defendant and the names of the persons authorised to accept service, if known;

• where the applicant is not the proprietor or not the only proprietor of the patent concerned, postal and where available, electronic addresses for service on the proprietor and the names and addresses of the persons authorised to accept service, if known;

• where the applicant is not the proprietor of the patent concerned, or not the only proprietor, evidence to show the applicant is entitled to commence proceedings;

• details of the patent concerned, including the number;

• where applicable, information about any prior or pending proceedings relating to the patent concerned before the Court including any action for revocation or a declaration of non-infringement pending before the central division and the date of any such action, the European Patent Office or any other court or authority;

• an indication of the division which shall hear the action with an explanation of why that division has competence; where the parties have agreed in accordance with Article 33(7) of the Agreement, the indication of the division which shall hear the action shall be accompanied by evidence of the defendant’s agreement.
Particulars in accordance with Rule 192:

A clear indication of the measures requested:

• preserving evidence by detailed description, with or without the taking of samples/ physical seizure of allegedly infringing goods /physical seizure of the materials and implements used in the production and/or distribution of these goods and any related document / the preservation and disclosure of digital media and data and the disclosure of any passwords necessary to access them.

• The measure requested must include the exact location of the evidence to be preserved where it is known or suspected with good reason.



The reasons why the proposed measures are needed to preserve relevant evidence

The fact and evidence relied on in support of the Application



Where the Application is lodged before the main proceedings on the merits of the case (Rule 192 (3)):

The Application shall contain a concise description of the action which will be started before the Court, including an indication of the facts and evidence which may be relied on in support.

 

Lodging of the Application for preserving evidence
(Rule 192 (1) &(5))

 
Where the Application is lodged before the main proceedings on the merits of the case:The Application shall be lodged at the division where the applicants intends to start proceedings on the merits.

The applicant shall pay the fee for the Application for preserving evidence (amount no yet known). The Application shall not be deemed to have been lodged until the fixed fee for the order to preserve evidence has been paid.
Where the Application is lodged after the main proceedings on the merits of the case:The Application shall be lodged at the division where the applicant has commenced infringement proceedings on the merits.

The applicant shall pay the fee for the Application for preserving evidence (amount no yet known). The Application shall not be deemed to have been lodged until the fixed fee for the order to preserve evidence has been paid.


Tags:

Evidence

Order for inspection

Order to preserve evidence


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