A guide to the UPC and the UP - Flipbook - Page 262
not subsequently be prevented from initiating proceedings in relation to that dispute before
the Court by the expiry of any limitation or prescription periods. The mediation process serves
to stay such periods, but if the mediation proceedings are terminated without settlement, the
period will start running again from that moment. 59
13-26 The parties must inform the judge-rapporteur of any settlement and the Court may then,
if requested by the parties, confirm the terms of the settlement or arbitral award in a final
decision, which becomes enforceable as a final decision of the Court. 60 The decision of the
Court will normally be entered in the register, although the terms of the settlement will remain
confidential if the parties so request. 61 Although revocation or limitation of the patent is not
possible in mediation or arbitration, 62 the decision of the Court confirming the settlement or
arbitral award will bind the parties and may include terms which oblige the patent proprietor
to limit, surrender or agree to the revocation of the patent or not to assert it against the other
party or third parties. 63 A decision by the Court may also include an award of costs, the award
being agreed by the parties or decided by the Court at the request of the parties. 64
Closure of the Interim Procedure
13-27 The interim procedure should be completed within three months of the closure of the
written procedure. 65 During the interim procedure, the judge-rapporteur will, if a date has
not already been set, set the date for the oral hearing and summon the parties to attend. 66
The judge-rapporteur may also change the date of the oral hearing if appropriate. 67
Although the RoP are silent on this point, it seems likely that the summons to the experts
and/or witnesses to attend the oral hearing will also occur at this stage. 68 The parties should
be given at least two months’ notice of the date of the oral hearing, unless they agree
otherwise. 69 Where a counterclaim for revocation of a patent is referred to the central division,
but the infringement action has not been stayed, the judge-rapporteur will seek to set the date
for the oral hearing of the revocation action before that date set for the infringement action. 70
13-28 After the interim conference and the issuing of a summons to attend the oral hearing and as
soon as the judge-rapporteur considers that the preparation of the case is adequate for the
oral hearing, the judge-rapporteur will inform the presiding judge and the parties that the
interim procedure is closed. 71 Alternatively, the interim procedure shall be deemed closed on
the last date of any final dates in relation to orders made by the judge-rapporteur during the
interim proceedings or at the interim conference. 72
13-29 Once the interim procedure is closed, the oral procedure starts immediately, and the
management of the action is transferred from the judge-rapporteur to the presiding judge. 73
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r.11(1) RoP.
rr.11(2) and 365(1) RoP.
r.365(2) RoP.
art.35(2) UPCA.
r.11(2) RoP.
rr.11(2) and 365(4) RoP. For further details see chapter 22 (Settlement and the Patent Mediation and Arbitration Centre).
r.101(3) RoP.
rr.104(h) and 108 RoP. After consultation with the presiding judge and parties, the judge-rapporteur may order that the oral
hearing or a separate hearing of witnesses or experts be wholly or partly by video conference in accordance with r.112.3 RoP.
r.334(b) RoP.
rr.177 and 181 RoP.
r.108 RoP.
r.40 RoP.
r.110(1) RoP.
r.110(2) RoP.
r.110(3) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 252
