A guide to the UPC and the UP - Flipbook - Page 459
Introduction
22-01 As with other commercial disagreements, parties may wish to resolve disputes regarding
patent infringement and validity in a negotiated way in order to avoid or foreshorten potentially
lengthy and expensive litigation where the outcome is uncertain. Although the Unitary patent
and Court system aims to improve the process of patent enforcement and also the legal
certainty in patent-related litigation, 1 the UPCA, in line with the procedural law of many
Contracting Member States, indicates that the parties should initially be guided to settle their
dispute without resorting to litigation.
22-02 To help achieve this aim, art. 35 UPCA establishes the Patent Mediation and Arbitration Centre
(“the Centre”) to provide facilities for mediation and arbitration of patent disputes falling within
the scope of the UPCA. Its activities are considered further at the end of this chapter, although
such discussion is necessarily limited because no arbitration rules or mediation rules had been
published as at the time of writing. 2
22-03 Should the parties to a dispute reach a settlement, whether as a result of the involvement of
the Centre or otherwise, they may request that the Court confirms the settlement by way of
a decision. 3 This decision may also contain the terms of the settlement agreement. As this may
be a significant change for many practitioners compared to the settlement procedure before
the courts in the Contracting Member States, the confirmation procedure and its practical
implications are considered in detail below. 4
Settlement
The Court’s Role in Encouraging Settlement
22-04 The role that the Court must play in actively managing all cases 5 includes helping the parties
to settle the whole or part of the action. 6 The Court’s role in encouraging the parties to consider
settlement and/or using the facilities of the Centre applies to the Court of Appeal, 7 as well as
the Court of First Instance.
22-05 The Court’s obligation to help the parties explore settlement is elaborated in r.11(1) RoP.
This states that the Court may, at any stage of the proceedings, if it is of the opinion that the
dispute is suitable for settlement, propose that the parties make use of the facilities of the
Centre in order to settle the dispute or to explore whether it may be settled in some other way.
In particular, this rule requires that the judge-rapporteur shall, during the interim procedure 8
and, especially at the interim conference, explore the possibility of a settlement. The rule
explains that exploring settlement can be by way of mediation and/or arbitration, using the
facilities of the Centre. However, the rule does not limit the judge-rapporteur and the parties
to that option only, as is confirmed by r.104 RoP, which sets out the aims of the interim
conference, and requires the judge-rapporteur to explore the possibilities of settlement or
using the facilities of the Centre. 9 This clearly suggests that the Court will not be strictly limited
1
2
3
4
5
6
7
8
9
See also recital 25 Unitary Patent Regulation, paras 5 and 6 of the preamble to the UPCA and paras 5 to 7 of the preamble to
the RoP.
Although draft mediation rules were published in 2015 it is uncertain to what extent the final rules as eventually published
will accord with these.
art.79 UPCA.
See paragraphs 22-17 to 22-26.
See chapter 13 (Interim Procedure).
r.332(f) RoP.
r.239(1), referring to r.104(d) RoP.
See chapter 13 (Interim Procedure).
r.104(d) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 449
