A guide to the UPC and the UP - Flipbook - Page 34
Appeal Against Decisions of the EPO other than the Decisions Related to a
Rejection of a Request for Unitary Effect
2-88
The application to annul or alter a decision of the EPO has to be lodged at the Registry of the
Court in the language in which the patent was granted. The deadline for filing the appeal is
two months after the service of the EPO decision. 83
2-89
The appeal has to include among other formalities the facts, evidence and arguments relied on
as well as relevant documents. 84 A fee of currently €1,000 has to be paid 85 and the appeal is not
deemed to be lodged until the fee has been paid. 86
2-90
The Registry will then examine the appeal as to certain formal requirements, including payment
of the fee, and in this context may invite the claimant to correct deficiencies within 14 days.
If the claimant does not do so, a decision by default may be given. 87
2-91
If the requirements referred to in r. 89.1 RoP have been complied with, the date of receipt
of the appeal to annul or alter the EPO decision is then recorded, an action number is given
to the file, the file is recorded in the register, and the claimant is informed of the action number
of the file and the date of receipt. 88
2-92
The case is then first forwarded to the EPO with an indication that the application
is admissible. 89
2-93
The EPO is then given the opportunity for an interlocutory revision. 90 In the process of the
interlocutory revision, the EPO may come to the conclusion that it is appropriate to annul
or alter its decision. It then has to rectify the contested decision within two months of the
date of receipt of the appeal in accordance with the order or remedy sought by the claimant.
The Court of course has to be notified accordingly. Once the Court is informed that the decision
has been rectified by the EPO, it must inform the applicant that the action is closed. A full or
partial reimbursement of the fee for the action against the EPO decision may be ordered. 91
2-94
Should the EPO not rectify its decision and the proceedings be considered as not being closed,
the action will be assigned to a panel of the central division or to a single judge if requested
by the applicant and a judge-rapporteur designated. 92
2-95
The judge-rapporteur may invite the claimant to lodge further written pleadings and at a certain
point may set a date and time for an interim conference. 93
2-96
The judge-rapporteur will invite the claimant to indicate whether it would like an oral hearing
to be convened, but of course may also convene an oral hearing at his own instance. 94
Otherwise, the general provisions regarding the interim procedure and the oral procedure
apply. The Court shall give its decision as soon as possible after the oral hearing and endeavour
to give a written decision, with reasons, within six weeks. 95
83
84
85
86
87
88
89
90
91
92
93
94
95
r.88(1)RoP.
r.88(2) RoP.
rr.88(3) and 370 RoP and section III in the Table of Fees.
rr. 88(3) and 15(2) RoP.
r.89 RoP.
rr.90(a) to (c) RoP.
r.90(d) RoP.
r.91 RoP and r.24 Unitary Patent Rules.
r.91 RoP.
r.92 RoP.
r.93 RoP. See also chapter 13 (Interim Procedure).
rr.95 and 96 RoP. If claimant does not want to attend an oral hearing, the Court will take a decision on the papers before it
(r.117 RoP).
r.118(6) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 24
