A guide to the UPC and the UP - Flipbook - Page 194
11-110 All written pleadings and other documents (including written evidence) must be lodged in the
language of the proceedings unless otherwise provided by the Court or RoP. 198 Where a local or
regional division has designated more than one language as the languages of proceedings, the
language to be used in proceedings will be decided by the claimant subject to the small local
operator rule 199 and the use, in certain circumstances, of the language of the patent. 200 The
defendant can file a preliminary objection based on the SoC not being in the required
language, 201 but otherwise has no choice as to language unless it can be agreed with the
claimant. 202 The Registrar will maintain a list of designated languages and the rules applying in
each division. 203 The list will be made publicly available online. Pleadings lodged in the wrong
language will be returned by the Registrar. 204
11-111 The privilege of the claimant to choose the language is limited by the following rules.
Small Local Operator Rule
11-112 R.14(2)(b) RoP is intended to protect small locally operating defendants. If a defendant is sued
in its home division and the case could not be brought before any other local or regional
division (i.e. infringement is limited to that division under art.33(1)(a) UPCA), 205 the proceedings
must be conducted in the official language of the Contracting Member State.
11-113 In circumstances where a Contracting Member State has designated several official regional
languages, the proceedings shall be conducted in the official language of the region in which
the defendant has its domicile or principal place of business. Where there are two or more such
defendants whose domicile or principal places of business have different regional languages,
the claimant may choose the language from the regional languages in question. Similarly,
where a Contracting Member State has several official languages (for the whole state) and its
designation so indicates, proceedings shall be conducted in the defendant’s official language,
and where there is more than one language, the choice devolves to the claimant.
11-114 It should be noted that the small local operator rule does not take into account situations
where, like in the Nordic-Baltic division, Contracting Member States have designated only one of
the EPO languages, English, as the language of proceedings.
11-115 In addition, the protection of a small operator does not apply if the infringement extends
beyond the geographical territory covered by the defendant’s home division. In such case, the
defendant may be sued in any of the languages designated by the division where proceedings
are initiated.
English Limited Rule
11-116 A further limitation is the “English limited” rule adopted by the local divisions in Belgium,
Germany and France. 206 This provides that a local or regional division may adopt a rule
indicating to what extent the judges may use the official national language instead of English in
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199
200
201
202
203
204
205
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r.7(1) RoP. For example, r.13(1)(q) RoP provides that a claimant may make a request that all or part of the documents referred
to in the SoC need not be translated.
See paragraphs 11-112 to 11-115.
See paragraph 11-122.
See chapter 12 (Written Procedure) paragraphs 12-04 to 12-28 for the procedure for a preliminary objection.
art.49(3) UPCA. See paragraphs 11-123 to 11-125.
r.14(3) RoP.
r.14(4) RoP. This rule was criticized at the Trier oral hearing. It was argued by Pierre Véron from the Expert Group that the
decision as regards “death and life” of a pleading should be the decision of a judge.
Under art.33(1)(a) UPCA, infringement proceedings and counterclaims for revocation (amongst other things) are brought
before the local division hosted by the Contracting Member State where the actual or threatened infringement has occurred,
or may occur, or the regional division in which that Contracting Member State participates.
r.14(2)(c) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 184
