!! The Rules of Procedure for the Unitary Patent Court are yet to be finalized and adopted by the UPC Preparatory Committee !!
I. Start of proceedings (written procedure):
(A) Initial pleading and what needs to be submitted to the UPC:
Depending on the type of action to be started, the draft Rules of Procedure of the UPC lays down what the corresponding Statement or Application shall contain:
- a Statement of claim shall contain the items listed in Rule 13;
- a Statement for revocation shall contain the items listed in Rule 45;
- a Statement for a declaration of non-infringement shall contain the items listed in Rule 60;
- an Application for appropriate compensation under Article 8.1 of Regulation 1257/2012 shall contain the items listed in Rule 80;
- an Application to annul or alter a decision of the European Patent Office shall contain the items listed in Rule 88;
- an Application for obtaining provisional and protective measures and injunctions shall contain the items listed in Rules 192 and 206.
(B) Starting proceedings before the UPC:
Depending on the type of action which is to be started, the plaintiff shall lodge either:
- a Statement of claim (infringement action)
- a Statement for revocation (revocation action)
- a Statement for a declaration of non-infringement
- an Application for appropriate compensation under Article 8.1 of Regulation 1257/2012
- an Application to annul or alter a decision of the European Patent Office.
Similarly, an action for obtaining provisional and protective measures and injunctions will start when a plaintiff lodges an Application under Rules 192 and 206 of the draft Rules of Procedure of the UPC.
(C) Registration of the plaintiff’s proceedings:
A plaintiff shall lodge the Statement or Application at a sub-registry of the UPC’s Registry. A sub-registry will be set up at all local or regional divisions as well as at the central division’s seat and sections (Article 10.3 of the UPC Agreement). The plaintiff may in many instances choose between several divisions, in accordance with the competence of the divisions under Article 33 of the UPC Agreement.
It is currently planned that an electronic filing system will be set up so that a plaintiff will be able to lodge the statement or Application electronically at the UPC’s Registry (Rule 4 of the draft Rules of Procedure of the UPC).
A Statement of appeal against a decision of the UPC’s Court of First Instance – or an Application for leave to appeal against an order of the Court of First Instance – shall be lodged at the UPC’s Registry in Luxembourg. Electronic filing procedures are also planned for the appeal stage.
II. Interim Measures procedure:
(A) End of the Written procedure:
The aim of the Interim procedure is to make all necessary preparations for the oral hearing (Rule 101 of the draft Rules of Procedure of the UPC). The judge-rapporteur shall be responsible for the Interim Procedure and may in particular – where necessary, and subject to the mandate of the panel – hold one or more Interim conferences with the parties. In addition, the judge-rapporteur shall explore with the parties the possibility for a settlement, including through mediation, and/or arbitration, by using the facilities of the Patent mediation and arbitration centre (Article 52.2 of the UPC Agreement).
Further provisions in the draft Rules of Procedure of the UPC lay down that the judge-rapporteur may order parties to provide further clarification on specific points, answer specific questions, produce evidence or lodge specific documents including each party’s summary of the orders sought at the Interim conference (Rule 103 of the draft Rules of Procedure of the UPC).
(B) Cross examination of witnesses in Interim procedure:
Only preparatory discussions with witnesses and experts may take place during the Interim procedure (Rule 104(f) of the draft Rules of Procedure of the UPC). These preparatory discussions shall take place in the presence of the parties with a view to properly preparing for the oral hearing.
(C) UPC compliance penalty:
The UPC has a general power to impose a penalty on a party which does not comply with an order of the UPC (Article 82.4 UPC Agreement; Rule 354.5 of the draft Rules of Procedure of the UPC). The penalty shall be proportionate to the importance of the order to be enforced.
In the Interim procedure, the judge-rapporteur may order the parties to provide additional information (Rule 103 of the draft Rules of Procedure of the UPC). During an Interim hearing, the judge-rapporteur may issue orders regarding the production of further pleadings and documents, experts, experiments, inspections or further written evidence (Rule 105(e) of the draft Rules of Procedure of the UPC).
III. Oral procedure :
(A) Witness cross-examination :
Witnesses will only be heard during the oral procedure if ordered during the Interim procedure (Rule 112.2(b) of the draft Rules of Procedure of the UPC). If ordered, witnesses and experts may be heard – always under the control of the presiding judge – either during a separate hearing before the panel or during the oral hearing (Rules 104(h) and 112.3 of the draft Rules of Procedure of the UPC). Where a witness or expert is heard during the oral hearing, the presiding judge and the judges of the panel may put questions to the witness or expert. The parties may also – under the control of the presiding judge – put questions to the witness or expert (Rule 112.3 and .4 of the draft Rules of Procedure of the UPC).
(B) UPC’s decision:
Only in exceptional cases may the UPC give its decision immediately after the closure of the oral hearing. In such cases the written reasoning will be provided on a subsequent date.
Normally, the UPC’s decisions on the merits will be given after the closure of the oral hearing, as soon as possible. The stated objective is that decisions are issued in writing within six weeks of the oral hearing (Rule 118.7 of the draft Rules of Procedure of the UPC).
Any means of evidence may be relied on in the UPC proceedings. In addition, evidence may be obtained by hearing witnesses and party or court experts. The court may order a party to the proceedings to produce evidence. Such an order may be requested by a party which submits reasonable and plausible evidence to support its claims and specifies the evidence which is in the control of the other party. If a party fails to comply with an order to produce evidence this will be taken into account in the court’s decision.
The UPC may issue orders to preserve evidence, such as the inspection of physical objects or premises and the taking of samples. It may also order the seizure of allegedly infringing goods and the materials for producing such goods. Freezing orders are possible under certain circumstances, and may be issued without hearing the defendant.