A guide to: Evidence -Step 2: Examination of the Application

The tables below look into the three stages of the examination process after the lodging of the application for an order to preserve evidence or order for inspection.

Examination of the Application by the Registry (Rule 193)
Where the Application is lodged before the main proceedings on the merits of the case:	Formal examination by Registry (Rule 16): • The Registry shall check and inform the applicant whether the patent concerned is the subject of an opt-out. In the event of an opt-out the applicant may withdraw or amend the Application. • The Registry shall, after the lodging of the Application, examine whether the requirements of the contents (Rule 13), use of languages (Rule 14) and fees (Rule 15) for the Application have been complied with. • If the claimant has not complied with these requirements the Registry shall invite the claimant to: o correct the deficiencies within 14 days of service of such notification; and o where applicable, pay the fee for the order to preserve evidence within said 14 days. • The Registry shall at the same time inform the applicant that if the applicant fails to correct the deficiencies or pay the fee within the time stated: o a decision by default may be given, in accordance with Rule 355. o the Registry shall inform a judge of the division who may reject the action as inadmissible by a decision by default. The judge may give the applicant an opportunity to be heard beforehand. Recording in the register and assignment (Rule 17): If the requirements of the contents (Rule 13), use of languages (Rule 14) and fees (Rule 15) have been complied with, the Registry shall: • record the date of receipt of the Application and attribute an action number to the file; • record the file in the register; and • inform the applicant of the action number of the file and the date of receipt. The action shall be assigned to a panel of a division according to Rule 345.3. Where requested by the parties the action shall be assigned to a single judge in accordance with Rule 345.6. Designation of the Judge-Rapporteur (Rule 18): The presiding judge of the panel to which the Application has been assigned shall designate one legally qualified judge of the panel as judge-rapporteur. The presiding judge may designate himself as judge-rapporteur. The Registry shall notify the applicant and defendant of the identity of the judge-rapporteur.
Where the Application is lodged after the main proceedings on the merits of the case:	The Application for preserving evidence shall immediately be examined by the Registry and forwarded to the panel to which the action has been assigned to or to the judge to whom the action has been assigned. Formal examination by Registry (Rule 16): • The Registry shall check and inform the applicant whether the patent concerned is the subject of an opt-out. In the event of an opt-out the applicant may withdraw or amend the Application. • The Registry shall, after the lodging of the Application, examine whether the requirements of the contents (Rule 13), use of languages (Rule 14) and fees (Rule 15) for the Application have been complied with. • If the claimant has not complied with these requirements the Registry shall invite the claimant to: o correct the deficiencies within 14 days of service of such notification; and o where applicable, pay the fee for the order to preserve evidence within said 14 days. • The Registry shall at the same time inform the applicant that if the applicant fails to correct the deficiencies or pay the fee within the time stated: o a decision by default may be given, in accordance with Rule 355. o the Registry shall inform a judge of the division who may reject the action as inadmissible by a decision by default. The judge may give the applicant an opportunity to be heard beforehand.

Examination of the Application by the Registry (Rule 193)

Where the Application is lodged before the main proceedings on the merits of the case:

Formal examination by Registry (Rule 16):

• The Registry shall check and inform the applicant whether the patent concerned is the subject of an opt-out. In the event of an opt-out the applicant may withdraw or amend the Application.

• The Registry shall, after the lodging of the Application, examine whether the requirements of the contents (Rule 13), use of languages (Rule 14) and fees (Rule 15) for the Application have been complied with.

• If the claimant has not complied with these requirements the Registry shall invite the claimant to:
o correct the deficiencies within 14 days of service of such notification; and
o where applicable, pay the fee for the order to preserve evidence within said 14 days.

• The Registry shall at the same time inform the applicant that if the applicant fails to correct the deficiencies or pay the fee within the time stated:
o a decision by default may be given, in accordance with Rule 355.
o the Registry shall inform a judge of the division who may reject the action as inadmissible by a decision by default. The judge may give the applicant an opportunity to be heard beforehand.

Recording in the register and assignment (Rule 17):

If the requirements of the contents (Rule 13), use of languages (Rule 14) and fees (Rule 15) have been complied with, the Registry shall:

• record the date of receipt of the Application and attribute an action number to the file;

• record the file in the register; and

• inform the applicant of the action number of the file and the date of receipt.

The action shall be assigned to a panel of a division according to Rule 345.3. Where requested by the parties the action shall be assigned to a single judge in accordance with Rule 345.6.

Designation of the Judge-Rapporteur (Rule 18):

The presiding judge of the panel to which the Application has been assigned shall designate one legally qualified judge of the panel as judge-rapporteur.

The presiding judge may designate himself as judge-rapporteur.

The Registry shall notify the applicant and defendant of the identity of the judge-rapporteur.

Where the Application is lodged after the main proceedings on the merits of the case:

The Application for preserving evidence shall immediately be examined by the Registry and forwarded to the panel to which the action has been assigned to or to the judge to whom the action has been assigned.

Formal examination by Registry (Rule 16):

• The Registry shall check and inform the applicant whether the patent concerned is the subject of an opt-out. In the event of an opt-out the applicant may withdraw or amend the Application.

• The Registry shall, after the lodging of the Application, examine whether the requirements of the contents (Rule 13), use of languages (Rule 14) and fees (Rule 15) for the Application have been complied with.

• If the claimant has not complied with these requirements the Registry shall invite the claimant to:
o correct the deficiencies within 14 days of service of such notification; and
o where applicable, pay the fee for the order to preserve evidence within said 14 days.

• The Registry shall at the same time inform the applicant that if the applicant fails to correct the deficiencies or pay the fee within the time stated:
o a decision by default may be given, in accordance with Rule 355.
o the Registry shall inform a judge of the division who may reject the action as inadmissible by a decision by default.

The judge may give the applicant an opportunity to be heard beforehand.

Examination of the Application by the Court (Rule 194)

Examination of the Application by the Court (Rule 194)
The Court shall have discretion to (Rule 194 (1)):
Summon the applicant to an oral hearing without the presence of the defendant.	Inform the defendant about the Application and invite him to lodge, within a time period to be specified, an Objection to the Application for preserving evidence which shall contain: • the reasons why the Application shall fail; • the facts and evidence relied on, in particular any challenge to the facts and evidence relied on by the applicant; • where main proceedings on the merits of the case have not yet been started before the Court, the reasons why the action which will be started before the Court shall fail and an indication of the facts and evidence relied on in support.
Decide the Application without having heard the defendant.	Summon the parties to an oral hearing.
In exercising its discretion, the Court shall take into account (Rule 194 (2)):
The urgency of the action. Whether the reasons for not hearing the defendant appear well-founded. The probability that evidence may be destroyed or otherwise cease to be available.

Oral hearing (Rule 195)

Oral hearing (Rule 195)
• Where the Court decides to summon the parties to an oral hearing, the date for the oral hearing shall be set as soon as possible after the date of receipt of the Application for preserving evidence. • Rules 111 to 116 governing the oral procedure (Role of the presiding judge, Conduct of the oral hearing, Duration of the oral hearing, Adjournment, Oral hearing, Absence by a party from the oral hearing) shall apply. • Where the applicant is absent from the oral hearing without a reasonable excuse, the Court shall reject the Application for preserving evidence. • The decision of the Court on the Application for preserving evidence shall be given in writing as soon as possible after the closure of the oral hearing. If the Court deems appropriate, the decision may be given orally to the parties at the end of the oral hearing but shall as soon as practicable thereafter be given in writing.

• Where the Court decides to summon the parties to an oral hearing, the date for the oral hearing shall be set as soon as possible after the date of receipt of the Application for preserving evidence.

• Rules 111 to 116 governing the oral procedure (Role of the presiding judge, Conduct of the oral hearing, Duration of the oral hearing, Adjournment, Oral hearing, Absence by a party from the oral hearing) shall apply.

• Where the applicant is absent from the oral hearing without a reasonable excuse, the Court shall reject the Application for preserving evidence.

• The decision of the Court on the Application for preserving evidence shall be given in writing as soon as possible after the closure of the oral hearing. If the Court deems appropriate, the decision may be given orally to the parties at the end of the oral hearing but shall as soon as practicable thereafter be given in writing.