A guide to the UPC and the UP - Flipbook - Page 268
an interpreter at its own expense, then it shall inform the Registry of this at least two weeks
before the oral hearing, 48 and shall bear the costs itself. 49
Length of the Hearing
14-20 The presiding judge will endeavour to complete the oral hearing within one day. In order to
reach this goal, the presiding judge can use any of the case management powers in r.334 RoP,
set time limits on the parties’ oral submissions, limit the oral testimony and control the
questions put to witnesses and experts. 50
Representatives
14-21 Art.48 UPCA includes the general rules for representation in front of the Court. 51 The parties
shall be represented by lawyers authorised to practice before a court of a Contracting
Member State. Alternatively, they may be represented by European Patent Attorneys who
have appropriate qualifications, for example, the European Patent Litigation Certificate,
and who are entitled to appear as professional representatives before the EPO pursuant
to art.134 EPC. Representatives may also be assisted by patent attorneys who are not
authorized representatives; such patent attorneys can speak before the Court. 52 On a
practical note, considering that many cases are likely to be highly complex, both legally
and technically, teams consisting of both lawyers and patent attorneys would be advisable.
14-22 Representatives of the parties have the rights and immunities which are necessary to exercise
their duties independently. 53 This includes communications between a representative and the
party or any other person being privileged from disclosure in proceedings before the Court. 54
14-23 Representatives of the parties have a duty not to misrepresent cases or facts before the Court
either knowingly or where, with good reason, they should know. 55 Representatives must comply
with the Code of Conduct for representatives appearing before the Court 56 and representatives
will also be subject to their own national professional laws, regulations and codes of conduct.
Public Hearings and Confidentiality
14-24 The oral hearing and any separate hearing of witnesses and experts are to be open to the
public unless the Court decides to make them confidential. This can be done to the extent
necessary in the interests of both parties, third parties or in the general interest of justice
or public order. 57
14-25 This provision implies that the Court has discretion regarding the level of confidentiality
needed. In exercising this discretion, the Court has to weigh the parties’ interests in maintaining
confidentiality against the interest of the public and the freedom of press for an open court.
It is expected that the judges will decide this issue/question based on their national experience,
but also guided by the rights of the Charter of Fundamental Rights in the EU. 58
48
49
50
51
52
53
54
55
56
57
58
r.109(4) RoP.
r.109(5) RoP.
rr.112 and 113 RoP.
These provisions are explained in more detail in chapter 23 (Legal Representation, Privilege and Code of Conduct)
paragraphs 23-01 to 23-11.
art.48(4) UPCA.
art.48(5) UPCA. See chapter 23 (Legal Representation, Privilege and Code of Conduct) paragraphs 23-15 to 23-34.
art.48(5) UPCA and rr.287 to 289 RoP.
art.48(6) UPCA.
See chapter 23 (Legal Representation, Privilege and Code of Conduct) paragraphs 23-35 to 23-45.
art.45 UPCA and r.115 RoP.
OJ No. C 326, 26.10.2012, p.391.
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