A guide to the UPC and the UP - Flipbook - Page 334
evidence during the appeal proceedings. This general principle is embodied in art.73(4) UPCA
and expanded upon by r.222 RoP. 50
Figure 17-1: Evidence at Each Stage of Procedure
Stage of procedure
Party evidence
Pre-action procedure
Orders to perserve evidence ( saisie ) and orders for inspection may be made prior to the
commencement of proceedings.
Written procedure
Written pleadings must contain the evidence (both written and physical) relied on,
where available, as well as any further evidence which will be offered in support.
Evidence must be produced regarding a statement of fact that is contested or likely
to be contested by the other party. Evidence can include:
(1) written evidence (documents, written witness statements, plans, drawings, photographs);
(2) expert reports and reports on experiments;
(3) physical objects; and/or
(4) electronic files.
Orders to produce evidence, issuing letters rogatory and orders for
experiments may be made at this stage.
Interim procedure
Production of written and other physical evidence may continue Interim procedure to this stage
as managed by the judge -rapporteur. Preparatory discussions may also be held with witnesses
and experts, although such discussions do not themselves constitute evidence.
Oral procedure
Court may order oral evidence from witnesses or experts either during the oral hearing
or in a separate hearing for witnesses and experts. Judges may put questions to witnesses.
Parties may put questions to witnesses under control of presiding judge.
Appeals
Parties in appeal proceedings are limited to relying on facts and evidence submitted
at first instance. In exceptional circumstances parties may submit new facts or evidence
during appeal proceedings.
Remedies
Orders to communicate information after finding of infringement may be made at this stage.
Voluntary Production of Evidence
Lodging Copies of Documents with Written Pleadings
17-30 The RoP require parties to give detailed consideration very early in the proceedings as to what
facts they will need to prove their case and how they will prepare and present the evidence to
prove those facts. Written pleadings filed by the parties during the written procedure must give
an indication of the facts relied upon which, in the case of a SoC in an action for infringement,
must contain one or most instances of alleged or threated infringements specifying the date
and place of each and the identification of the patent claims alleged to be infringed. 51
17-31 When deciding how to support its claim, a party should consider the provisions of rr.171
and 172 RoP. These two rules provide that:
– Where a party makes a statement of fact that is contested or likely to be contested by the
other party, the party making the statement of fact must indicate the means of evidence to
prove it; 52
50
51
52
See also chapter 21 (Procedure before the Court of Appeal) particularly paragraphs 21-19 and 21-20.
r.13(1)(l) RoP.
r.171(1) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 324
