A guide to the UPC and the UP - Flipbook - Page 184
different defendants. 109 Additional Court fees may be payable if separate proceedings
are ordered. 110
11-59 The Court also has the power to consolidate proceedings. The Court can order that parallel
infringement and revocation actions relating to the same patent or patents and before the
same local or regional division or the central division or the Court of Appeal be heard together
when it is in the interests of justice to do so. 111
Change in Parties
11-60 Parties may need to be added, removed or substituted during the course of proceedings and
the RoP makes provision for this. Although the RoP is silent as to when these changes can be
made, it is likely that a change to the parties can be made at any stage of the proceedings on
application to the Court.
11-61 An application is made by a party requesting that the Court make an order to change a party to
the proceedings. 112 The change is not made until the Court has invited the other parties to the
proceedings to comment on the application. 113 When the order is made, the Court will also
make appropriate orders as to the payment of fees and costs. 114 It will also give directions to
regulate the consequences as to case management and determine the extent to which the new
party is bound by the proceedings as then constituted. 115
11-62 A party may cease to exist or become insolvent during the course of proceedings. Although the
RoP provide for these circumstances, the present rules lack detail as to the precise procedure to
be followed.
Death or Demise of a Party
11-63 If a party dies or ceases to exist (e.g. a company is wound up) during the course of proceedings,
the proceedings will be stayed until the party has been replaced by its successor. 116 However, if
there are more than two parties to the proceedings, the Court may decide that:
– The proceedings between the remaining parties are continued separately; and
– The stay will only concern the proceedings relating to the party that no longer exists. 117
11-64 An obvious question is who notifies the Court of such an event? If a party is not represented,
the Court or the other party may not be aware that a party has either died or ceased to exist
and may continue with the proceedings as if nothing had happened. The RoP state that if the
successor of the party that died or ceased to exist does not continue the proceedings of its own
motion within a period specified by the Court, any other party can apply to have the successor
added or substituted as a party. 118 However, this does not fully address the potential issues. For
example, the RoP may be in conflict with the national law of the deceased person or dissolved
company which governs the right to bring or defend proceedings. For example, in the case of a
deceased natural person, the right may pass under a will or the laws of intestacy. Further, there
may be issues such as whether a natural person should become a party to proceedings of
which they were not aware.
109
110
111
112
113
114
115
116
117
118
r.303(2) RoP.
rr.302(2) and 303(3) RoP.
r.302(3) RoP.
r.305(1) RoP.
r.305(2) RoP.
r.305(3) RoP.
r.306 RoP.
r.310(1) RoP.
r.310(2) RoP. See paragraphs 11-163 to 11-165 in relation to the stay of proceedings.
r.310(3) RoP.
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A Guide to the UPC and the UP 174
