The launch of the UPC edges ever closer as the official final text of the Rules of Procedure is published and the appointment of judges continues to advance.
Rules of Procedure
The official text of the final consolidated version of the UPC Rules of Procedure (RoP) was published on 29 August 2022, including the amendments adopted by the Administrative Committee on 8 July 2022 when the final text was approved (see our earlier article: Finally Rules of Procedure of the UPC – Bird & Bird (twobirds.com).
So far only the English text has been published: the French and German will follow.
We highlight a number of provisions below:
- The most important change is that an opt-out under Rule 5 must be made in respect of all EPC countries in which the patent was validated, not just the UPC member states, as UPC judgments may in certain situations have effect outside the UPC territory. What that actually means in practice will only become clear when it is tested in litigation.
- Rule 5A now provides a correction mechanism for unauthorised opt-out applications and unauthorised withdrawals. Another measure to help prevent unauthorised acts in the case management system is not in the rules, but was announced on 25 August: users of the system will be required to have eIDAS-compliant authentication. In addition legal documents, which shall be submitted online, will require a qualified electronic signature. The UPC will therefore use the highest level of online security currently available.
- Rule 262 now deals with public access to written pleadings and evidence at the UPC, which requires a reasoned request. In addition, parties to the litigation may require redaction of such documents. An application for access to a redacted part will be decided by the court, weighing the interests involved. Judgments will always be public, but personal data will be redacted in accordance with the GDPR where applicable. Rule 262A provides for the protection of confidential information and the establishment of a confidentiality club.
- The introduction of the possibility of hearings by videoconference, including witness hearings, is included in a number of provisions, especially Rule 112. Many national courts have used remote hearings during the COVID-19 pandemic and this is now seen as sufficiently reliable and effective. However, the parties basically remain entitled to a physical hearing. Hearings by videoconference normally require the consent of the parties, but the court may also order them “due to exceptional circumstances”.
- Part 5 Chapter 2 on service now has secure electronic service of initial statements as the standard means of service in line with the new EU Service Regulation. Of course, if no electronic address of the defendant is available, there will still be physical service. Once the litigation is ongoing, all exchanges of documents will be in electronic form through the case management system.
This is now the final version of the RoP as it will be applied by the court. It is considered to be the most modern set of procedural rules in Europe, based on the input of experts in litigation across Europe.
Appointment of judges
In the meantime the process of appointment of the initial judges is well underway.
There is a list of the initial numbers of national legally qualified judges per local division. In actual litigation the panels will be supplemented with judges from other local divisions, as they will always be of multinational composition. The final confirmation of these appointments can be expected around the end of September and at that time the list should become publicly available. This will be an important step for continuing to build confidence with industry.
For further information, please contact:
Wouter Pors, Partner, Bird & Bird
wouter.pors@twobirds.com
