A guide to the UPC and the UP - Flipbook - Page 314
Assignment of the Application and Urgent Applications
16-43 Once an application is filed, the Registry will examine it and check whether a protective letter
has been filed. 40 The Registry then deals with the application according to whether main
proceedings have been started or not. If they have not, under r.208(2) RoP the Registry will
record 41 and allocate the proceedings which will lead to the designation of a judgerapporteur. 42 Where the main proceedings have already begun, the application will be passed
to the panel already appointed.
16-44 In either case, where the application is urgent, the presiding judge is empowered to decide the
application acting as a single judge. In such a case, the single judge has all the necessary powers
of the Court. 43 In cases of “extreme urgency” the standing judge may decide on the application
immediately. 44 This power enables the application to be considered quickly without the
need to allocate the case to a particular panel of judges and appoint a presiding judge.
One administrative step is therefore cut out from the process but for cases of both “urgency”
and “extreme urgency”, the Registry must still allocate the application to the relevant division.
There does not appear to be a procedure available for applying directly to the standing judge
of the relevant division since all applications are initiated by filing at the Registry.
Examination of the Application
16-45 After the application has been allocated, and judges appointed as required, the Court has three
available options under r.209(1) RoP. 45 It may:
– Inform the defendant of the application with an invitation to respond, in which case,
the defendant should:
– Set out the reasons why the application should fail;
– Provide the facts and evidence relied upon; and
– If main proceedings have not yet started, state reasons why the expected main
proceedings should fail and an indication of the facts and evidence relied upon;
– Schedule an oral hearing with both parties; or
– Schedule an oral hearing with the applicant only.
16-46 R.209(1) RoP therefore appears to envisage that the Court may prolong the written procedure,
by inviting a response from the defendant, or it may move directly to the oral procedure in
which case it appears that the written phase is closed. Although r.209(1) RoP does not refer
to r.211(2) RoP, the rules appear to envisage that if further evidence of the applicant’s
entitlement to commence the proceedings or the validity or infringement of the patent is
required, this should be requested prior to the oral hearing but not necessarily prior to
inviting a response from the defendant. However, this is not expressly set out and will be
for the judge-rapporteur to specify.
40
41
42
43
44
45
r.208(1) RoP.
Although the RoP call for the Registry to record the file in the register, if it is made ex parte, it must obviously not be made
publicly available at least until after the Court has decided the application and the order has been served on the defendant.
For the avoidance of doubt, an applicant may want to make an application under rr.209(4) and 262 and/or 262A RoP
requesting that the application be kept confidential.
rr.17 and 18 RoP.
r.208(4) RoP.
r.209(3) RoP. This may mean that there is a risk that the standing judge is not made aware of the existence of any protective
letters lodged with the Registry.
r.209(1) RoP also applies in the event that the applicant has requested that the application be dealt with on an ex parte basis.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 304
