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Preparatory Committee agrees the Rules of Procedure of the Unified Patent Court

 

The near-final form of the 18th Draft of the UPC Rules of Procedure has been formally adopted by the UPC Preparatory Committee at their most recent meeting on 19 October 2015. Although there will be further amendments to the 18th version in light of the ultimate rules on court fees and any additional technical amendments, the text published yesterday represents years of intensive work between the Preparatory Committee’s Legal working group, the Drafting Committee and stakeholders, including representatives from the Allen & Overy UPC team.

The previous version of the 18th draft, leaked over the summer, contained numerous substantive changes namely in relation to how the opt-out process would operate under Rule 5 and a procedure for determining which seat of the Central Division would hear an action (click here for more details). As expected, the version published yesterday had fewer substantive changes which are summarised as follows:
 

Dispensing with trials: Rule 10(c) now provides that the oral hearing or trial can be dispensed with by the Court if agreed by the parties. Although circumstances where both parties agree to dispense with an oral hearing are likely to be rare, this new provision does afford parties who are cautious about costs to have their case dealt with on paper.

 

Refusing appeals: Rule 229(5) confirms that if an appellant has not met the time requirements for lodging an appeal under Rule 224(1), the Registry will inform the President of the Court of Appeal who will reject the appeal as inadmissible. Although the President of the Court of Appeal “may” afford the appellant an opportunity to make representations before rejecting the appeal, the ability for a party to do so is entirely within the President’s discretion. It is therefore crucial that parties strictly comply with the time limits under Rule 224(1) lest their appeal is rejected on procedural grounds.

 

Selection of judicial panels: Rule 345 now clarifies that it is the President of the Court of First Instance (or a judge to whom he or she has delegated the task) that will allocate judges to the panels of the local and regional divisions and the central division and its sections. This further confirms that the President of the Court of First Instance will play an important role in the formation and operation of the UPC.

 

As stated by the Preparatory Committee, the 18th draft of the Rules of Procedure is “an essential element in the future training of judges of the Court and the decision of the Committee will ensure a smooth transition from the development to the active planning of such training”. The topic of judicial training will be discussed at the next Preparatory Committee meeting that will be held on 7 and 8 December 2015. In the meantime, would-be UPC litigants are awaiting the outcome of the consultation on UPC court fees which is expected in early 2017.
 

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