A guide to the UPC and the UP - Flipbook - Page 316
Oral Hearing
16-51 If the Court decides to summon both parties to oral proceedings, the date for the hearing
shall be set as soon as possible after the date of receipt of the application. 50 Read literally the
grammar appears to suggest that it is the setting of the date which should take place as soon
as possible whereas the overall purpose would appear to be to hold the hearing without undue
delay. Possibly, the legislative intention is that the date should be set as soon as possible and
that the date scheduled should be in the near future.
16-52 The Court can order the parties to provide further information, documents or evidence. 51
The usual rules for an oral hearing, contained in rr.111 to 116 RoP, apply. 52 R.210(3) RoP
expressly provides that if the applicant does not attend without a reasonable excuse, the
application will be rejected and to that extent varies r.116 RoP, particularly r.116(3) RoP, which
states that if a party does not attend, they shall be treated as relying only on their written case.
16-53 A written decision must be given as soon as possible after the closure of the oral proceedings,
but the Court may give the decision orally at the end of the hearing and provide the written
decision later. R.210(4) RoP does not say so in terms, but this suggests that the Court may make
an order or reject an application at the end of a hearing without giving detailed reasons and
then provide detailed reasons later. This practice is common in at least Germany.
16-54 The Court may order the applicant to provide security. If such security is ordered, the order for
the provisional measure does not become effective until the security has been given. 53
Revocation of Provisional Measures
16-55 R.213(1) RoP provides that the Court must ensure that any order made for provisional
measures must be revoked or cease to have effect upon request of the defendant, if within a
certain period of time, the applicant does not commence main proceedings against the
defendant. The time period is the longer of 31 calendar days or 20 working days from the date
specified in the Court’s order. The time limit cannot be extended. 54 Where the provisional
measures are revoked or it is subsequently found that the patent was not infringed, the Court
may order the applicant to provide compensation to the defendant. 55
16-56 The date that will be specified in the Court’s order and starts the time running is not clearly
expressed in r.213(1) RoP as there is a reference to the Court taking account of the date that the
report referred to in r.196(4) RoP is to be presented, i.e. the report from the bailiff or other
person appointed to carry out the saisie. This reference appears entirely spurious and should
be ignored. Despite this, the date will be clear from the order and the applicant should have no
difficulty in calculating the period in which it should commence proceedings on the merits.
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r.210(1) RoP.
r.210(2) RoP.
See chapter 14 (Oral Procedure) for further details.
r.211(5) RoP. See chapter 19 (Enforcement) paragraphs 19-46 to 19-64.
r.9(4) RoP.
r.213(2) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 306
