With the launch of the upcoming Unified Patent Court (UPC), a brand-new set of applicable procedural rules (UPC Rules of Procedure) will enter into force.

In various ways, the UPC Rules of Procedure are fundamentally different from the litigation procedures in many UPC Member States.

The UPC employs a so-called front-loaded procedural system meaning each party must present its entire case (including the relevant evidence) in the first written submission. This system differs from that of many European jurisdictions, including Denmark, where the parties may produce relevant evidence continuously throughout the preparatory part of the case.

In addition, the UPC procedure operates with very tight deadlines for the parties’ filing of written pleadings. The front-loaded system paired with the tight deadlines entails that the parties to a UPC litigation must be able to promptly allocate significant resources to make their full case.

Consequently, patent holders and businesses in patent dominant markets and industries are advised to have a UPC patent litigation procedure in place, both to be able to swiftly address infringements of own patents and to respond to allegations of infringements within the tight deadline(s). In short, you have to be prepared!

In the following we describe the UPC litigation procedure by outlining the three procedural stages of litigation: The written procedure, the interim procedure and the oral procedure.

Stage 1: The written procedure

The written procedure should normally take 6-8 months.

An infringement action is commenced by lodging a Statement of Claim from the claimant. The Statement of Claim must contain all the relevant facts, information about the patent, evidence, legal arguments and claims for relief.

Consequently, before lodging the Statement of Claim the claimant must identify and prepare all the relevant and necessary documents, evidence, etc. In other words, preparing the Statement of Claim will require detailed planning and thorough preparations by the claimant.

Within three months of service of the Statement of Claim, the defendant shall lodge its Statement of Defense. The Statement of Defense must contain all the relevant facts, hereunder any challenge to the facts presented by the claimant, evidence, reasons why the action shall fail, legal arguments and, if relevant, any counterclaim for revocation of the patent.

Moreover, the parties have the option of lodging subsequent pleadings in the form of the claimant’s Reply to the Statement of Defense and the Defendant’s Rejoinder to the claimant’s Reply. If the defendant has lodged a Counterclaim for Revocation in the Statement of Defense, the claimant must also respond to this specific claim by lodging a Defense to the Counterclaim of Revocation. The deadlines for lodging these subsequent pleadings varies between 1-2 months. This short deadline means that the plaintiff must already have foreseen that a counterclaim for Revocation of the patent is likely and have already prepared for this.

Furthermore, in such subsequent pleadings the parties may only respond to the other party’s latest pleading. This strongly highlights that the parties must make their case in full in the Statement of Claim or the Statement of Defense respectively, as they do not have a right to present new evidence or new arguments later.

Patent litigations are often extremely complex and it normally takes a substantial amount of time to prepare the evidence, arguments, etc. For the same reason, the three-month period for the defendant to present its entire defense (the Statement of Defense), including any invalidity defense, is a very short time.

Consequently, to be able to handle potential litigations before the UPC effectively, hereunder by producing the relevant evidence within the sharp deadlines of the written procedure, the relevant personnel within your business must know the new system and deadlines and a clear strategy for handling patent litigation matters must be in place.

Although the written procedure is slightly different in revocation actions and actions for a declaration of noninfringement, the deadlines are equally tight in these types of actions.

Stage 2: The Interim Procedure

The interim procedure means that the court takes a much more active and controlling role in preparing the case than what is known in many European jurisdictions including Denmark.

The interim procedure is primarily a case management stage where a judge from the panel (the judgerapporteur) prepares the case for the oral hearing. It is the job of the judge-rapporteur to make sure that the facts of the case are sufficiently established before the oral hearing, hereunder by issuing orders regarding different kinds of evidence, including the matters to be subject to oral evidence at the oral hearing. The judge-rapporteur may host a preparatory meeting/ conference with the parties and/or order the parties to provide further clarification on specific points, answer specific questions, etc. Although the court may appoint a court appointed expert at any time, the need for doing so will typically become apparent during the interim procedure. The judge-rapporteur will also explore the possibility of reaching a settlement.

The interim procedure shall be completed within three months of the closure of the written procedure.

Stage 3: The oral procedure

Most cases before the UPC will be heard by three legally trained judges, with the possibility of adding a fourth technically trained judge.

The general aim is that the oral hearing shall take place within one year of the start of the proceedings and that the oral hearing itself is completed within a single day.

Conducting the oral hearing in just one day is a very remarkable aim, as the oral hearing in patent litigation before the national courts often lasts several days or even weeks in many European jurisdictions. The short time assigned for the oral hearing before the UPC is mainly due to the procedural system being front-loaded and the judge-rapporteur’s case management role during the interim procedure. During the oral hearing, the parties will be allowed a short oral submission. If ordered during the interim procedure, the parties will also be allowed to ask questions to witnesses or experts. However, the parties will not be allowed to orally go over the whole case, and the court may also prohibit any questions to witnesses  or experts which are not designed to adduce the admissible evidence.

Again, this entails some very significant differences from how oral hearings are conducted in national patent litigations within EU, where parties are usually allowed to reiterate all or most of their views, arguments and the relevant evidence during the oral hearing.

This further stresses the need for your business to take the front-loaded system of the UPC seriously and be very well prepared for potential UPC patent litigations in the future by educating the relevant people and instigating the relevant procedures within the business.