Two recent UPC orders have changed the existing languages of proceedings from Dutch and German respectively to English. Is this the start of a shift towards proceedings more generally being conducted in English? In this piece we look at language trends to date in UPC proceedings and the impact that the recent orders may have on proceedings in future and possible direction of travel.
Languages: current state of play in the UPC
The Case Management System of the UPC shows that there are 21 revocation proceedings in the UPC. 18 of them are conducted in English, 2 in German and 1 in French. English being used in the majority of revocation actions is unsurprising as Article 49(6) UPC Agreement provides that the language of proceedings at the central division shall be the language in which the patent concerned was granted. The majority of European patents are granted in English and so we expect this trend to continue.
The language rules for infringement proceedings in the UPC are more complex. Each local or regional division chooses the permitted language(s) of infringement proceedings, which can be either (a) the official EU language (or languages) of the member state(s) of the local or regional division or (b) English, French or German (the official languages of the EPO). The patentee then chooses in which language to file. All local divisions have designated English as an additional language for UPC proceedings (see here), and the Nordic/Baltic regional division as the only language. However, so far, the majority of infringement actions have been brought in German (in Germany).
The breakdown of languages used in infringement proceedings is as follows:
Data obtained from searches on the UPC’s case management system at the date of writing
Can we expect a switch to English for existing proceedings?
The first “language switch” order
On 18 October, the local division of The Hague allowed the change of language from Dutch to English in proceedings opposing Plant-e (a Dutch company that develops products where living plants generate electricity) to Arkyne Technologies (a Spanish start up specialised in the innovation of renewable energies).
Florence Butin, president of the UPC Court of First Instance at The Hague, allowed Arkyne’s application on the basis that:
- both parties had a good command of English (English is one of their working languages and also the language of exchanges prior to the infringement action)
- the switch to English would not affect the interests of Plant-e; and
- being sued in a language not mastered is an important inconvenience and would result in considerable time and expense to Arkyne.
Arkyne had argued that maintaining Dutch would engender considerable disproportionate translation costs and that this was at odds with the UPC rationale, which is supposed to make European patent litigation affordable for SMEs.
The language order made in the Plant-e v Arkyne proceedings and the risk of a change may lead to English being used as a matter of course in local divisions involving Small and Medium Sized entities, unless the defendant can be expected to work in another language.
Direction of travel
It was only as the UPC opened on 1 June 2023 that the local divisions Germany, Italy and France permitted the use of English (under Rule of Procedure 14.2(c)). The judge rapporteur can order oral proceedings, decisions and orders in divisions in those countries to be in German/Italian/French if it is in the interest of the panel of judges.
It is possible that in proceedings filed in German divisions when the court opened may have been prepared in German because, at the time (before 1 June), English was not yet an officially-designated language. Another reason may that the German courts attracted many patentees initially as the local division of first choice, following the tradition of the German national courts being popular with patentees, and those bringing those cases have overwhelmingly been advised by German lawyers.
In time, we may see more proceedings in English: of the 9 infringements proceedings in German local divisions with English as a designated language, 4 were filed in October 2023. Further, in the Amgen’s infringement proceedings brought against Sanofi, the parties agreed and the court ordered in November the change of the language of proceedings from German to English (see Order 584907/2023).
Aside from business convenience, proceedings in English may open up the pool of judges able to be designated as third judge on panels. To date, out of 29 infringement proceedings conducted in German in local divisions in Germany, Andras Kupecz has been appointed as third judge in 11, while Edger Brinkman acts as third judge in 10. Opening up the pool of judges will help address the workload of individual judges, which will also allow the UPC to continue acting rapidly.