A guide to the UPC and the UP - Flipbook - Page 223
12-42 The fixed fee, and if applicable, the value-based fee, is payable when the action is lodged.
It must be paid to a bank account indicated by the Court noting the paying party or its
representative, the patent and the case number. 86 The SoC is not deemed to have been lodged
until the fixed fee and, where applicable, the value-based fee has been paid. 87
Evidence in Support of the SoC
12-43 As the proceedings are front-loaded, r.13(1) RoP provides that, in the SoC, the claimant must:
– Indicate the facts on which it relies; 88 and
– Include the evidence on which it relies, where available, and an indication of any further
evidence which it will offer in support. 89
12-44 The term “evidence” is extremely broad and includes documents, witness statements, expert
reports and physical objects. 90 The means of obtaining evidence is also extremely broad and
includes hearing the parties, witnesses and experts, requests for information, production of
documents and experiments. 91
12-45 The scope of the obligation on the claimant with regards to what it includes in its SoC needs to
be considered in the context of the general requirement that the burden of proving facts lies
with the party relying on those facts, 92 and the requirement under r.172(1) RoP which places a
party under a duty to produce evidence “regarding a statement of fact that is contested or likely
to be contested by the other party.” The claimant therefore cannot rely upon the defendant
admitting the facts contained in the SoC, every fact has to be supported by evidence or an
indication of how it will be supported by evidence. Failure to do so will be taken into account by
the Court when deciding the issue in question. 93 What level of detail will be required in the SoC
remains to be seen. However, it is likely that the claimant will be required to specify its claim in
as much detail as possible and include documents where they are in its possession in addition
to documents that it can readily access, for example, documents available on the Internet.
It should also mention where witness statements and experts reports will be produced to
support statements of facts or opinions on which it relies. 94
12-46 Where a claimant needs evidence from the defendant or a third party in order to prove a fact
on which it relies, it should mention the point in the SoC so that it is set up for an application for
an order to produce such evidence. R.190(1) RoP specifies that, where a party has presented
reasonably available and plausible evidence in support of its claims and has, in substantiating
those claims, specified evidence which lies in the control of the other party or a third party,
the Court may order that other party or third party to produce such evidence. 95
86
87
88
89
90
91
92
93
94
95
r.371(1) RoP.
r.15(2) RoP. This rule ends with the words “unless otherwise provided” but other than where legal aid is granted under rr.375
to 382 RoP, it is difficult to speculate when the Court might waive payment of the fees.
r.13(1)(l) RoP.
r.13(1)(m) RoP.
r.170(1) RoP.
r.170(2) RoP.
art.54 UPCA.
r.171(1) RoP.
For strategic considerations on what evidence should be produced with the SoC see chapter 17 (Evidence) paragraphs 17-35
to 17-40.
See chapter 18 (Orders to Produce Evidence Including “Saisies”) paragraphs 18-86 to 18-105 for a detailed description of
orders to produce evidence under r.190 RoP. An application can be made for production of the evidence during either the
written or the interim procedure.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 213
