A guide to the UPC and the UP - Flipbook - Page 185
11-65 The Court must decide who can be added or substituted as a party and will make orders to
the conduct of proceedings in accordance with rr.305 and 306 RoP. 119 Following an application,
the Court will invite the other parties to the proceedings to comment before making a decision.
The Court will also make orders for Court fees, costs and directions and determine the extent to
which a new party is bound by the proceedings.
Insolvency of a Party
11-66 If a party is declared insolvent under an applicable law, the Court will stay the proceedings
for up to three months until the competent national authority or person dealing with the
insolvency has decided whether or not to continue with the proceedings. 120 Where they decide
not to continue with the proceedings, the Court may decide, following a reasoned request by
the other party, that the proceedings should be continued in accordance with the applicable
national insolvency law. 121 Again, there is no provision in the RoP as to who is responsible for
notifying the Court.
11-67 Proceedings may also be stayed at the request of a temporary administrator who has been
appointed before a party is declared insolvent. 122
11-68 The claimant will have the choice of withdrawing an action against an insolvent defendant or
continuing it. Similarly, a defendant can withdraw a counterclaim for revocation against an
insolvent claimant or continue with the proceedings. A condition of withdrawal is that it does
not prejudice the action against the other parties. 123
11-69 If proceedings are continued, the effect of the decision of the Court with respect to the
insolvent party is determined by the law applicable to the insolvency proceedings. 124
Transfer of Patent During Proceedings
11-70 A new proprietor of the patent or patent application in suit can be added or substituted as a
party. The addition or substitution is only made to the extent that the patent and the claims in
the proceedings have been assigned to the new proprietor. 125 Where a new proprietor takes
over the proceedings, no new Court fee is payable even where the new proprietor is
represented by a new representative. 126
11-71 The existing party, the assignee or the other parties to the proceedings may seek the Court’s
authorisation for the new proprietor to be added or substituted as a party. 127 However, the RoP
does not discuss the requirements of such an application and what information is required by
the Court.
11-72 If the new proprietor does not wish to take over the proceedings, any decision in
the proceedings that has been recorded in the register will be still be binding on
the new proprietor. 128
119
120
121
122
123
124
125
126
127
128
See paragraphs 11-60 and 11-61.
r.311(1) RoP.
r.311(1) RoP.
r.311(2) RoP. See paragraphs 11-163 to 11-165 in relation to the stay of proceedings.
r.311(3) RoP. Withdrawal of proceedings is discussed in further detail in paragraphs 11-156 to 11-158.
r.311(4) RoP.
r.312(1) RoP.
r.312(2) RoP.
r.312(1) RoP.
r.312(3) RoP.
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A Guide to the UPC and the UP 175
