A guide to the UPC and the UP - Flipbook - Page 317
Appeal
16-57 The order for provisional and protective measures must indicate that an appeal may be
brought. 56 The procedure for making appeals is dealt with in arts 73 to 75 UPCA and rr.220 to
254 RoP and considered in chapter 21 (Procedure before the Court of Appeal). There is no need
to seek leave to appeal orders for provisional and protective measures, the rationale being that
they are a privileged class touching upon the basic interests of the parties. 57 The appeal does
not have suspensive effect, although the Court of First Instance cannot give a decision in the
main proceedings before the decision of the Court of Appeal concerning the appeal of the
order. 58 There is a tight timetable for such appeals, the statement of appeal and statement of
grounds have to be lodged within 15 days of the order being made 59 and, within 15 days of
service of these documents, the statement of response has to be lodged. The oral hearing will
also be held more quickly as the usual two months’ notice period does not apply. 60 If the matter
is urgent, the appellant can apply in the statement of appeal for the matter to be expedited. 61
This mirrors the procedure in some national laws, such as that of Belgium, where the appeal
court deals with the substance of the matter without delay if it is warranted. Note that r.345(8)
RoP provides for the Court of Appeal to have a standing judge in the same way as the first
instance courts have standing judges for urgent matters.
Requests for Applications to be Heard Without
the Defendant ("ex parte")
16-58 R.206(3) RoP provides for orders for provisional measures to be made without the
defendant being present. A flow diagram showing the various steps in the process is at
figure16-1. Where the applicant requests that the hearing be ex parte, the application must
contain the reasons therefor and information about any prior correspondence between the
parties concerning the alleged infringement.
56
57
58
59
60
61
r.211(6) RoP.
“Table with explanatory notes to the changes made by the Legal Group of the Preparatory Committee in the 17th draft of the
Rules of Procedure” 31 October 2014, p.15.
art.74(3) UPCA.
rr.224(1)(b) and (2)(b) RoP.
r.239(2) RoP.
r.225(e) RoP.
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A Guide to the UPC and the UP 307
