UPC: Case management and proceedings
The written procedure of the, in practice, most important proceedings, actions for infringement of patents together with counterclaims for revocation and applications to amend, is illustrated in the Rules of Procedure:
The following additions should be noted:
Preliminary objections regarding competence of the court and procedural language must be raised within one month after service of the infringement action.
The chart further does not show the ability of the court to stay proceedings. In practice, relevant grounds for a stay of the proceedings can be separate actions for revocation before the central division (for which the three-month deadline, which applies to counterclaims for revocation, does not apply) and/or opposition proceedings before the EPO. Also of relevance are cases in which a local division refers a counterclaim for revocation to the central division and stays the infringement action (instead of continuing it).
Furthermore, the deadlines shown in the chart are not binding, but can be extended given a respective application from a party. One example would be the case where defendant argues that he cannot meet the three-month deadline for the counterclaim for revocation (e.g. because the prior art search is extensive) and does not want to be referred to a separate claim for revocation.
The written procedure is followed by the interim procedure, which is scheduled to take three months. The oral hearing shall be held after the interim procedure is closed. Ideally, the whole proceedings will take no longer than 9 to 11 months.
In the interim procedure, the court prepares the oral hearing. Together with the parties it discusses whether witnesses or court experts should be summoned. Regarding the latter, the parties can make suggestions on whom to choose and what questions to ask. After the written expert opinion has been issued, the parties can also make comments thereto.
During the written procedure, the court can manage the case, e.g., by ordering the parties to submit relevant evidence.
Decisions by the court can be appealed. The appeal proceedings mirror the proceedings in first instance, with the main difference being that for the most part no further facts re infringement and prior art can be submitted. The parties therefore have to rely on the facts and prior art presented in the first instance. Consequently, in the written procedure, each party can usually make only one submission (instead of two or three). Ideally, the appeal proceedings will therefore also take no longer than one year, meaning that a final and binding decision can be expected no later than two years in total.
