A guide to the UPC and the UP - Flipbook - Page 257
13-06 The parties should have given considerable thought to the management of the case during
the written procedure, including indicating in their pleadings what orders they intend to seek
during the interim procedure. They will also have lodged evidence, possibly including witness
statements and expert reports, and therefore it should be possible to identify the core issues
and facts on the basis of the documents already in the action. In preparation for the interim
conference, the judge-rapporteur may order the parties, within time periods to be specified,
to provide further clarification on specific points, answer specific questions, produce evidence
and/or lodge specific documents, including each party’s summary of the orders to be sought
at the interim conference. 16
13-07 If it is decided that an interim conference is necessary, the date and time should be set
by the judge-rapporteur, in consultation with the parties, as soon as practicable after
service of the SoD and should be confirmed before the closure of the written procedure. 17
The judge-rapporteur, the presiding judge or the panel may also adjourn or bring forward
any interim conference. 18 For example, in cases of bifurcation of the proceedings where
infringement and revocation actions are to proceed in parallel pursuant to art.33(3)(b) UPCA,
communication and coordination between central and local/regional divisions will be necessary
as to the timing of any interim conferences. 19 In addition, where multiple actions relating to the
same patent have been joined in order to avoid inconsistent decisions, 20 the judge-rapporteur
will have to consult with all parties as to when to arrange the interim conference. Other cases
may require the judge-rapporteur to expedite the interim conference.
13-08 The number and complexity of interim conferences required in any action may largely depend
on the extent to which the parties have front-loaded their evidence, i.e. whether the parties
have filed the majority of their witness and expert evidence during the written procedure.
Whilst the parties are encouraged to file evidence promptly, it may be necessary in some cases
for evidence to be filed after the closure of the written procedure. For example, a defendant to
a revocation action who has raised a counterclaim for infringement may not have had sufficient
time during the written procedure to file all of its evidence. Likewise, a defendant to an
infringement action who has filed a counterclaim for revocation may not have had sufficient
time to investigate the grounds of invalidity and/or obtain the evidence needed to support
them. The judge-rapporteur will need to consider in the light of the reasons provided bv the
parties for not filing the evidence at the outset whether to refuse to admit any late filed
evidence that was available but did not accompany the relevant pleadings when they were filed.
The RoP require the parties to indicate in their written pleadings any further evidence which
will be offered in support of the facts and contentions being relied upon and one would
expect the judge-rapporteur to consider this issue in light of the justification for the
late filing of the evidence.
13-09 Insofar as a party has not filed all of the evidence on which it wishes to rely, the
judge-rapporteur will set a deadline for its production. The opposing party must be given
the opportunity to present its comments on the further evidence 21 and so a further
deadline0for such comments to be provided must also be set. These timeframes must
necessarily be very short due to the intention of finishing the interim procedure within three
months. 22 In addition, a party may apply for an order compelling the opposing party or a third
party to produce evidence which is within in its control, although such an order would only be
granted after hearing the other party and only if such evidence was deemed necessary. 23
16
17
18
19
20
21
22
23
r.103(1) RoP.
rr.28 and 35(b) RoP.
r.334(b) RoP.
rr.37(5) and 38(d) RoP.
r.340 RoP.
art.76(2) UPCA.
r.101(3) RoP.
r.190 RoP.
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A Guide to the UPC and the UP 247
