The issue of the extent to which UPC local divisions would hear counterclaims for revocation in infringement cases, or refer the counterclaim to the central division (bifurcation), as well as to the extent different local divisions would diverge, was widely discussed before the UPC commenced operations. The picture emerging from early orders is that parties generally agree on what they want, and the court orders it!
This is a cautionary tale from the UPC - a last-minute request for extension of time to file a defence was rejected. This will leave the revocation action uncontested unless the patentee can successfully appeal.
A disappointing judgment from the UPC Court of Appeal, ruling that the act of requesting access to a document filed at the Court requires representation by a UPC Representative. It will be onerous for journalists, for example, to have to instruct a UPC Representative to get to even ask to see a document, such as a statement of claim or defence. Does the UPC really want to lack transparency to this extent? (short post by me)
Defendant (Swedish) in UPC infringement action brought by Israeli company succeeds in getting language of proceedings changed from German to English. The UPC is really promoting the use of English as the default language. By my colleague Sebastian Fuchs.
The UPC Court of Appeal has rejected applications by Mathys & Squire LLP and Bristows (Ireland) LLP to intervene in the appeal by Ocado against an order giving access to its statement of claim. The ruling is on basis that the applicants do not have a legal interest in the outcome of the appeal. I think this sets the bar to admissibility of intervention too high, arguably contrary to the whole point of intervening on policy grounds.
A somewhat longer read from us for the weekend - an overview of 2023 at the Unified Patent Court, looking also at Unitary Patents. It's got pretty charts and graphs and everything. Co-authored by me and colleagues.
Another evidence preservation order granted ex parte by the Unified Patent Court. These seem to be becoming fairly standard to obtain, provided that you have a patent that is not obviously invalid and a reasonable argument that it might be infringed. Which is to be expected, since the whole point of these orders is to gather the evidence needed to actually prove infringement. By my colleague Tom Brazier
Here is another case where the Unified Patent Court has declined to grant a provisional injunction, not being convinced that the patent is infringed. It is striking that the prosecution history (specifically the claim wording before amendment during prosecution) is used as a guide to claim meaning.
It will be interesting whether patentees go on with an action on the merits having lost substantively at this stage.
New post, by me: https://eipamar.com/en/knowledge-hub/article/upc-declines-to-grant-provisional-injunction/
This is a very interesting decision on service of proceedings at the Unified Patent Court. Formal service on parties outside the EU must be effected according to the Hague convention. This cannot be substituted by service on related parties within the EU. By my colleague Joanne Welch
A report by my colleague Isabelle Schaller on a multifaceted UPC decision on preliminary objections. It rejects the notion that the UPC cannot rule on infringements prior to the court coming into existence, and dismisses other attacks on jurisdiction. It points out that other matters such as security for costs are not proper for a preliminary objection. There are also stern warnings to use the CMS correctly.
Another interesting evidence preservation order from Milan Local Division of the #UPC. This time, the order allowed inspection of Defendants' premises (previous similar orders related to display at exhibitions). Post by me.
Za miesiąc kończy mi się umowa na internet światłowodowy w Orange. Nie chcę już światłowodu, bo nie wiem ile jeszcze będę najmował to mieszkanie. Jaki więc internet 5G (mobilny, nie światłowód) polecacie? (Warszawa)
It concerns the filing of the supporting evidence (annexes) to the Statement of Claim.
According to this decision, you can file the annexes with the Statement of Claim, or you can indicate they will be filed later, and either way the Statement of Claim can be validly served.
BUT if you file the annexes later, the defence timelines will be extended to run from service of the annexes.
Another order to seize evidence published by the UPC. Like the first two, this was granted very quickly. This report by my colleague Andy Sharples. (Original Order in Dutch).
Another #UPC#Order considering whether time limits should be consolidated when different defendants were served on different dates - in this case it was exceptionally allowed but that will not be the case in future generally.
More controversially, but specifically because of the manner that this particular Statement of Claim was worded, service was considered complete in the absence of annexes filed later containing supporting evidence.
I have written a report of the first detailed #UPC provisional injunction decision. I am surprised that neither the Court nor the Defendants (it seems) had a problem with the case being filed before the patent was granted.
My most controversial take (in the last footnote) is that the Court has got the deadline for appeal wrong. This relates to my earlier terminological musings as to what is a "Decision" and what is an "Order".
The #UPC is not a very transparent system. Party submissions are not automatically publicly available - they have to be requested. The first two such requests have been rejected. It seems that a real interest in access by the requester needs to be demonstrated. This is a huge shame (albeit that this does appear to be what the current rules of procedure envisage)
A very interesting judgment from the #UPC, following a videoconference hearing, considers what is the time of filing of an action, which is highly relevant when an infringment action and a revocation action are filed on the same patent. My colleague Jo Welch reports.
The UPC granted an extension of the period for filing a preliminary objection (which is a procedural objection to the competence of the court or division) despite finding the ostensible grounds for the request unconvincing. The message seems to be "you can have an extension this time, but don't count on it in the future". The extended deadline is today.
I am fascinated with the Unified Patent Court as it develops. Even small, procedural decisions are interesting. This extension of time request was refused. Another was allowed. What were the reasons? What can we discern about the criteria the court will apply? Does it differ from judge to judge or between different divisions? These are all fascinating questions in a new legal order. Some of you have been kind enough to like and boost my posts. But is anyone else here interested in the #UPC?
I am fascinated by the patent infringement case between Agfa and Gucci recently filed at the Unified Patent Court. I have taken a look at the patent and its prosecution history at the European Patent Office. Here is my overview.