A guide to the UPC and the UP - Flipbook - Page 37
Oral Proceedings
2-114 As is usual before the EPO, the applicant/requestor may file a request for oral proceedings.
According to r.21(1) Unitary Patent Rules, oral proceedings can be initiated by the EPO itself
or can take place at the request of any party to the proceedings. The EPO may, however, reject
the request for further oral proceedings where the parties and the subject matter of the
proceedings are the same. Thus, r.21(1) Unitary Patent Rules corresponds to art.116(1) EPC.
2-115 However, there is a very important restriction in the system of oral proceedings in r.21(2)
Unitary Patent Rules. It states that, in the procedure concerning the request for unitary
effect, oral proceedings shall take place before the Unitary Patent Protection Division of
the EPO at the request of the proprietor of the European patent only where the Unitary
Patent Protection Division considers it to be expedient. In other words, the EPO may reject
a request for oral proceedings.
2-116 The reason for this restriction of the right to oral proceedings is given in explanatory note 3
to r.21 Unitary Patent Rules. 105 In essence, the Select Committee refers to the need to keep
the procedure as expeditious as possible for reasons of legal certainty. In this context, oral
proceedings are considered to be a “delay”. It is also argued that oral proceedings are
considered to be very costly and usually not a means to further clarify the situation. This is
because the possible formal defects usually cannot be cured, and the legal situation will be
clear cut and simple in the majority of cases.
2-117 It is, however, highlighted in explanatory note 4 to r.20 Unitary Patent Rules, 106 that oral
proceedings with respect to other procedures such as the procedure for re-establishment
of rights, are unaffected by this restriction and are to be held upon request in accordance
with the standard rules for oral proceedings.
105
106
https://www.epo.org/law-practice/legal-texts/official-journal/2016/05/a39.html.
https://www.epo.org/law-practice/legal-texts/official-journal/2016/05/a39.html.
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A Guide to the UPC and the UP 27
