Rule 210 Oral hearing

The date for the oral hearing will be set as soon as possible after the date of receipt of the application for provisional measures. There is no fixed time limit for summoning the parties to the oral hearing; however, there must be sufficient time for the opponent to engage a lawyer and to prepare his defence. This is a requirement of fair and equitable proceedings (Art 42(2) UPCA) and of the fundamental right to be heard (Art 56(2) UPCA).

Judicial independence and impartiality

The status of UPC judges is determined exclusively by the UPCA. It differs in several respects from the status of German judges.

Written, interim and oral procedures

The main proceedings before the UPC consist of three procedural steps: the written procedure, the interim procedure, and the oral hearing. According to Rule 10 UPCARoP, all inter partes procedures before the Court of First Instance are divided into those three parts. The same applies for the appeal procedure before the Court of Appeal. The same structure, according to Rule 85 UPCARoP, is applicable for the proceedings in actions against a decision of the EPO concerning the EPO’s functions assigned to it pursuant to Art 9 EPUE Reg.

Preliminary objection

Rule 19.1 to .3 and .5 to .7 as well as Rules 20 and 21 shall apply mutatis mutandis.

Rule 75: Revocation action and subsequent infringement action in a local or regional division (Article 33(5) of the Agreement)

If the intention of the opponent of the patent proprietor is only to defend himself against an infringement action, he will wait until the patent proprietor asserts that patent against him. Even if the patent proprietor asserts the patent, it may not be sufficient reason for him to lodge an isolated revocation action. The costs of an isolated attack on the patent will appear to be too high, compared with the value of the legal security gained by revocation of the patent, if the patent proprietor decides not to lodge an infringement action against him. The alleged patent infringer does not lose any opportunity if he does not lodge a revocation claim at the time the patent proprietor asserts the patent against him. He can raise a Counterclaim for revocation if the patent proprietor decides to lodge an infringement action. Therefore, the alleged patent infringer can stop and wait until the patent proprietor lodges an infringement action.

Invitation to intervene

Rules 316 and Rule 316A contain different forms of inviting a third party to intervene in proceedings before the UPC: an ordinary invitation to intervene with the subsequent intervention of the third party pursuant to Rule 316 and a qualified invitation to intervene where the intervention effect, subject to the requirements of Rule 316A, takes place with or without an intervention by the third party (forced intervention).

Provisional and protective measures

The Court may, by way of order, grant injunctions against an alleged infringer or against an intermediary whose services are used by the alleged infringer, intended to prevent any imminent infringement, to prohibit, on a provisional basis and subject, where appropriate, to a recurring penalty payment, the continuation of the alleged infringement or to make such continuation subject to the lodging of guarantees intended to ensure the compensation of the right holder.

Removal from office

A judge can be removed from his office. Removal becomes effective on notice of a decision to that effect taken by the Presidium which is responsible for deciding on any removal from office.

Rule 226 Contents of the Statement of grounds of appeal

Rule 226 is intended to structure and limit the subject matter of an appeal in a reasonable manner. As a defendant, as appellant, can also challenge the validity of a patent in the appeal proceedings he is especially required to have already presented all his arguments at the start of the appeal proceedings. On that basis, the Court can prevent him from stating additional grounds for appeal at a later time—with the exception of objections based on public documents (→ Rule 222 UPCARoP).

Further exchanges of written pleadings

Without prejudice to the powers of the judge-rapporteur pursuant to Rule 110.1, on a reasoned request by a party lodged before the date on which the judge-rapporteur intends to close the written procedure [Rule 35(a)], the judge-rapporteur may allow the exchange of further written pleadings, within a period to be specified. Where the exchange of further written pleadings is allowed, the written procedure shall be deemed closed upon expiry of the specified period.