A guide to the UPC and the UP - Flipbook - Page 36
File Inspection and Constitution, Maintenance and Preservation of file
2-106 In essence, the same considerations apply as for European patent applications.
Representation
2-107 R.20(1) Unitary Patent Rules provides that the existing EPO requirements for representation
as outlined in arts 133 and 134(1), (5) and (8) EPC apply to Unitary patents mutatis mutandis.
2-108 Art.133 EPC provides that “no person shall be compelled to be represented by a professional
representative in proceedings established by this Convention” except in the case of natural
or legal persons not having their residence or principal place of business in an EPC contracting
state. This group of persons shall be represented by a professional representative and act
through their representative in all proceedings established by the EPC, other than in filing a
European patent application. Natural or legal persons having their residence or principal place
of business in an EPC Contracting State may also be represented in proceedings by an
employee, who need not be a professional representative but who is authorised in accordance
with the EPC Implementing Regulations. Explanatory note 13 to r.20(1) Unitary Patent Rules 103
explains by way of example that a Spanish firm having its place of business in Spain is not
subject to compulsory representation by a professional representative for the purpose of filing
a request for unitary effect and all the other procedures regarding a Unitary patent.
2-109 Therefore, where a legal person does not have its place of business in an EPC Contracting State,
it will need to be represented by a professional representative and act through that
representative in all proceedings regarding the Unitary patent, including for the act of filing of
the request for unitary effect. The representative must be one whose name appears on a list
maintained for this purpose by the EPO. 104
2-110 The scope of representation is defined in art.134(5) EPC in that persons whose names appear
on the list of professional representatives shall be entitled to act in all proceedings established
by the EPC.
2-111 According to art.134(8) EPC, representation in proceedings established by the EPC may also
be undertaken by any legal practitioner qualified in an EPC contracting state and having their
place of business in that state, to the extent that they are entitled in that state to act as a
professional representative in patent matters.
Taking of Evidence, Notifications and Time Limits
2-112 Again, in essence the existing rules for the EPO apply mutatis mutandis.
2-113 One exception is that the time limit in r.133(1) EPC Implementing Regulations has been
shortened to one month. R.133(1) EPC Implementing Regulations stipulates that a document
received late at the EPO is deemed to have been received in due time if it was delivered
to a recognised postal service provider in due time before the expiry period in accordance
with the conditions laid down by the President of the EPO, unless the document was received
later than three months after the expiry period. This shortened deadline again serves the
purpose of speeding up the proceedings.
103
104
https://www.epo.org/law-practice/legal-texts/official-journal/2016/05/a39.html.
art.134(1) EPC.
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