A guide to the UPC and the UP - Flipbook - Page 298
Reply of the Unsuccessful Party and Contents of the Defence
15-79 Once the application has been served upon the unsuccessful party, it may then either: 117
– Accept the claim made in the application, and the Registry must be informed within two
months. In that case, the judge-rapporteur will make the order in accordance with the
application; or
– Contest the claim. In that case, it shall then lodge a defence, within two months of service of
the application or, where there was a procedure for the laying open of books, within two
months of service of the information in r.131(2) RoP and the assessment of the claim.
15-80 The defence to the application shall contain the names of the unsuccessful party and of that
party’s representative, postal and electronic addresses for service on the unsuccessful party
and the names and addresses of the persons authorised to accept service. The application must
also contain the action number attributed to the file, the reasons why the application for the
award of damages is contested, and finally an indication of the facts and of the evidence
relied on. 118
Further Procedure
15-81 The claimant may lodge a reply to the defence within one month. The reply will be limited to a
response to the matters raised in the defence. Afterwards, the unsuccessful party may lodge a
rejoinder to the reply within one month of service of the reply, which will also be limited to the
matters raised in the reply. 119 After that, further written pleadings may be exchanged by order
of the judge-rapporteur and within specified time periods only. 120
15-82 There may be an interim procedure and an oral procedure under the same provisions
applicable to general proceedings before the Court, following such reduced timetable as may
be ordered by the judge-rapporteur. Finally, the judge-rapporteur will decide on the obligation
to bear the legal costs for the proceedings for determination of damages in accordance with
art.69 UPCA. 121
Request to Lay Open Books
15-83 The specific procedure for the award of damages may include a procedure to lay open books. 122
The expression “request to lay open books” comes from the literal translation of the German
phrase “die Bücher offenlegen” meaning to disclose the financial situation of a company by
e.g. disclosing accounting data. 123 In this context “offenlegen” probably more accurately
translates into English as “disclose” rather than “laying open”, and therefore “disclosure of
the books” might have been a better translation into English.
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119
120
121
122
123
r.137 RoP.
r.138 RoP.
r.139 RoP.
r.140(1) RoP.
r.140(2) RoP.
r.10(d) RoP.
In the German law, s.259 German Commercial Code (Handelsgesetzbuch) stipulates the disclosure of accounting books of a
company in the course of litigation and uses the term to disclose the books (“die Bücher offenlegen”). Consequently, this term
is also used in German legal commentaries with regard to s.259 German Commercial Code (see for instance Pötz, “Staub HGB
Großkommentar”, § 259 para.10). With regard to patents, s.140(b) German Patent Act (Patentgesetz) gives the patentee inter
alia a claim for information concerning the origin and the distribution channel of the infringing products. This claim also
includes information about the products delivered, received or ordered as well as the prices paid. Further, according to ss.242
and 259 German Civil Code (Bürgerliches Gesetzbuch, BGB) the patent owner has a general claim against the infringer for
rendering of account. However, the term “lay open books” seems not to be used in this context, at least in the wording of the
Patent Act as well as the Civil Code.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 288
