How does a case proceed through the UPC system?
Cases at the UPC proceed differently depending on the type of case and the instance where they are pending. First instance proceedings regarding infringement, invalidity, or declaratory action for non-infringement consist of three stages: a written procedure, an interim procedure and an oral procedure.
Timeline from the filing of the action until a decision is rendered
First instance cases are initiated by filing a statement of claim with the UPC. The statement of claim must include a detailed account of the specific facts and legal arguments relied upon. The statement of claim and subsequent briefs and evidence must be filed electronically.
The defendant has 3 months from the date of service to file his statement of defence, including any counterclaim for revocation. For declaratory actions, the deadline is 2 months. Each party will be given deadlines of 1-2 months to file a reply and rejoinder, respectively. This concludes the written procedure.
If defendant has any formal objections concerning jurisdiction, competence and language, such objections must be lodged within 1 month of service.
The next stage is the interim procedure, which serves to ensure the case is ready for the oral procedure. This stage may include the parties attending one or several interim conference(s) and the UPC deciding various procedural matters in preparation of the oral procedure. The interim procedure should be completed within three months after the end of the written procedure.
Once the interim procedure is completed, the case moves to the oral procedure, in which an oral hearing will take place. The UPC endeavours to limit the duration of the oral hearing to one day, although it can be longer in some cases, if considered appropriate. The oral hearing will include the parties' oral submissions (argument) and examination of any experts and/or witnesses.
The UPC shall endeavour to render its decision within six weeks following the oral hearing. It is the aim that cases at the UPC should be concluded within a total period lasting no longer than a year. An overview of the timeline for a UPC case is shown below.
Appeals
An appeal may be brought before the Court of Appeal by a party which has wholly or partly been unsuccessful in the Court of First Instance. The appeal may concern both legal and factual issues. However, new evidence which reasonably could have been produced during proceedings before the Court of First instance is barred from being produced at proceedings before the Court of Appeal. The deadline for filing an appeal of a decision from the Court of First Instance is two months from the date of publication of the decision.
Official court fees
- For an overview of the current court fees, see this page Table of Court Fees.
- Small enterprises and micro-enterprises are entitled to pay only 60% of the standard fees if certain criteria are met.
- Court fees may be reimbursed by up to 60% if an action is withdrawn or concluded by way of settlement.
Recovery of costs of representation (attorneys' fees)
The winning party to proceedings before the UPC is entitled to recovery of costs of representation. The costs recoverable by the winning party are attorneys' fees, costs related to expert advice, costs related to witnesses, and costs related to the use of translators.
In order to obtain a decision on costs, the winning party has to file a request to the UPC no later than a month after receiving the UPC's final decision. Alternatively, the UPC may render a decision on costs together with the decision on the validity and infringement of the patent.
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Der er nu, efter lang tids venten, udsigt til, at den fælles europæiske patentdomstol (Unified Patent Court, UPC), som Danmark havde...
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