A guide to the UPC and the UP - Flipbook - Page 345
17-78 The key duties of the Court expert are given in rr.186(1) to (7) RoP, which are as follows:
– Presenting an expert report in writing within the time period specified by the Court;
– Being under the supervision of the Court and informing the Court of the progress in carrying
out the task;
– Giving expert advice only on questions which have been put to the expert;
– Not communicating with one party without the other being present or without the consent
of the other party, and documenting all communications with the parties in the report;
– Not communicating the contents of the report to third parties;
– Attending the oral hearing and answering questions from the Court and the parties; and
– Having an overriding duty to assist the Court impartially on all matters relevant to the
expert’s area of expertise; being independent and objective and not acting as an advocate
for any party to the proceedings.
17-79 The expert shall, on receipt of the appointment order, confirm in writing that the expert report
will be presented within the time period specified by the Court. If the expert requests, the time
period in which the report must be presented can be extended. The mechanism for requesting
the time extension, and the Court deciding whether it is allowable, is not provided for in the
RoP, but it is assumed that it will be a matter for the Court and the expert. If it impacts on the
parties, they might want to comment. If the Court expert does not present the report within the
specified time frame or, as the case may be, the extended time frame, the Court may reduce
the fee and may appoint another expert in place of the first expert. The first expert may be held
liable for all or part of the costs of appointing and reimbursing the other expert. 116 This may
also impact any future dates, for example, the date for the oral proceedings.
17-80 Once the report of the Court expert has been presented to the Court, the Court shall invite the
parties to comment on it either in writing or during the oral hearing. 117 The duties of witnesses
under r.179 RoP 118 are equally applicable to Court experts.
Party Experts
17-81 The use of party appointed experts in patent litigation is well known in many Contracting
Member States. The right of the parties to produce party appointed expert evidence is set out in
art.57(1) UPCA which refers to the appointment of Court experts but states that this is “without
prejudice to the possibility for the parties to produce expert evidence”. This rule implies that
there is generally no limit on the parties’ right to produce expert evidence such as written
reports, although hearing such experts during the oral procedure may be limited by the Court
under r.112(2)(b) RoP.
17-82 Art.57(1) UPCA is implemented in r.181 RoP which states that a party may provide any expert
evidence that it considers necessary. It therefore appears that the parties do not require
permission to submit party expert opinions during the written stage of the proceedings. This is
similar to the position in Germany, for instance, where parties are allowed to provide their own
(party) expert evidence and no special permission is necessary.
17-83 The general right in r.181 RoP is subject to any orders the Court makes regarding expert
evidence at the interim conference. 119 For example the Court may decide to limit the scope
of questions which can be put to party experts at the oral hearing. This would appear to
116
117
118
119
r.185(8) RoP.
art.57(4) UPCA and r.187 RoP.
r.188 RoP. As described in paragraphs 17-60 to 17-64.
rr.104(e) and 112(2)(b) RoP.
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A Guide to the UPC and the UP 335
