A guide to the UPC and the UP - Flipbook - Page 264
Introduction
14-01 The oral procedure starts immediately after closure of the interim proceeding and ends with
the decision on the merits. Consistent with the aim to resolve disputes in a fair and timeefficient manner, significant emphasis is placed on the duration of the oral hearing only lasting
one day. 1 A brief oral hearing will be more familiar to practitioners in civil law jurisdictions such
as Germany and France where only in exceptional cases do hearings take more than one day.
In contrast, practitioners from common law jurisdictions such as the UK and Ireland will be
familiar with longer court trials, which can take from a few days to a couple of weeks,
depending on the nature and complexity of the case. 2
14-02 A first instance oral hearing on the issues of infringement and validity should normally take
place within one year of commencing the action, although in practice complex actions may
require a longer period of time and more procedural steps, and indeed, simpler actions may
be resolved in a shorter period of time, as they require fewer procedural steps. 3
The Court Panel
Judges Sitting on the Panel
14-03 Most cases before the Court of First Instance will be heard by a multinational panel of
three judges. 4 The President of the Court of First Instance, or a judge to whom this power has
been delegated, allocates the judges to the panels of the central, local and regional divisions. 5
In the event of one of the judges being prevented from attending, a judge from another panel
may be called upon to sit in accordance with the RoP. 6
14-04 Depending on the average number of patent cases per calendar year in the three years prior
to entry into force of the UPCA, there will either be one legally qualified judge from the local
Contracting Member State and two legally qualified judges who are not nationals of that State
(if the average is less than 50 cases per year) or two legally qualified judges from the local
Contracting Member State and one legally qualified judge who is not a national of that State
(if the average is 50 or more cases per year). 7
14-05 In addition to legally qualified judges, the panel is expected in many cases to include a
technically qualified judge. All panels of the central division will include such a judge who is
drawn from the pool and will have the relevant technical qualifications with respect to the
case. 8 A panel of a local or regional division are obliged to request a technical judge from the
pool if they decide to proceed with an action involving a counterclaim of revocation. 9 Indeed,
for other actions, at any time during the written procedure, the judge-rapporteur, after
consulting the presiding judge and the parties, may request that a technically qualified judge be
added to the panel or such a request may also be made by one the parties. 10 If a technically
qualified judge is added to the panel, the panel will have four members, however, the panel will
1
2
3
4
5
6
7
8
9
10
r.113 RoP.
This disparity is principally due to the different approaches to litigation in common law and civil law countries. Litigation in
common law countries (such as the UK and Ireland) is adversarial with the parties presenting their case to a judge who
remains neutral until judgment. Civil law systems are inquisitorial: the judge plays a more investigative role and will help
develop the case as it proceeds.
para.7 preamble to the RoP.
art.8(1) UPCA.
r.345(1) RoP.
art.35(2) UPCA Statute.
arts 8(2) and 8(3) UPCA. See chapter 5 (The Structure of the Court) paragraphs 5-42 to 5-48.
art.8(6) UPCA.
art.33(3)(a) UPCA.
rr.33 and 34 RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 254
