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The 18th Draft Rule of Procedure in detail…How does it differ from the 17th Draft?

Written by Louise AMAR 2 November 2015

We published this morning the 18th Draft Rules of Procedure. We now look at the modifications that the Preparatory Committee introduced to the final version of the UPC Rules of Procedure. 

Rule 5 -Paragraph 13: Opt out applications: 
The opt-out period  is now confirmed by paragraph 13 of Rule 5. Applications accepted by the Registry before the entry into force of the Agreement, shall be treated as entered on the register on the date of entry into force of the Agreement.

Rule 10 (c): Written procedure:
If all parties agree not to have an oral hearing (to reduce costs for example), the Court can decide not to hold an oral hearing.

Rule 14: Use of languages in proceedings:
Panels of regional or local divisions will have the possibility to use the official national language(s) of the country where it is situated for oral proceedings and for rendering orders or decisions, even if the parties themselves have chosen to use an additional language of the EPO as the language of proceedings. It will be up to the Judge Rapporteur to order this exception to the language regime, and he may only do so “in the interest of the panel”. However, in case the official language is used over the chosen language, each order and decision shall be accompanied with a certified translation for enforcement.

It means for example that the Judge Rapporteur in Lithuania may decide that in the interest of the panel it is better for the panel to use  Lithuanian rather than English/French/German, in oral proceedings and for drafting orders and decisions.

Rule 17.3: Distribution of actions between the seat of the central division and its sections: 
The UPC agreement provides that the competence is determined by the classification of the patent. Rule 17.3.c) provides a solution for the situation in which the action involves a single patent having more than one classification or where the action involves more than one patent which do not have a single classification corresponding to the seat or section of the central division. In such case the Registry shall assign the action to the panel to the seat or section appropriate to the first classification of either the single patent or, where the action involves more than one patent, the patent first listed in the Statement of claim.  This distribution is either accepted or rejected by the presiding judge of the aforementioned  panels. If the presiding judge rejects it, they shall instruct the Registry to refer the action to the presiding judge of a panel of the section of the central division they considers appropriate, who shall likewise consider if the allocation is appropriate. If the latter considers otherwise, the President of the Court of First Instance (which will be located in France), shall finally allocate the action.
Rule 158, paragraphs 4 and 5: Decision by default in case of no security for costs: 

At any time during proceedings and following a reasoned request by one party, the Court may order a party to provide a security for the legal costs and expenses incurred or to be incurred by the requesting party. If a party fails to provide adequate security the Court may give a decision by default.

Rule 202: Letters rogatory:

The Court can now issue letters rogatory for the production of documents by other competent courts or authorities outside the EU. In previous drafts of the Rules of Procedure the letters rogatory were only possible for the hearing of witnesses or experts by such courts.

Rule 229: Appeals not respecting the time requirements: 
Rule 229 provides that the President of the Court of Appeal shall reject the appeal as inadmissible, if it is lodged outside the time limits set for appeal . The rule however provides that the President “may” give the appellant an opportunity to be heard beforehand.

Rule 311: Insolvency of a party:
Rule 311 now provides that the Court shall stay proceedings up to three months if a party is declared insolvent under the law applicable to the insolvency proceedings. Proceedings may also be stayed at the request of a temporary administrator who has been appointed before a party is declared insolvent.

Rule 345: Allocation of judges to panels by the President of the Court:
The task of the President of the Court of First Instance is to allocate the judges to the panels of the local or regional divisions, the seat of the central division and its sections. In previous drafts this task was given to the “presiding judge of each local or regional division or the seat of the central division or one of its sections”. The Preparatory Committee has since decided to allocate the task of allocating judges to the President of the Court, who will therefore become a key player within the UPC.


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