Monday, 10 March 2014

No agreement on language in new draft Rules of Procedure for Unified Patent Court

The Preparatory Committee has released a new draft of the "Preliminary set of provisions for the Rules of Procedure (“Rules”) of the Unified Patent Court".  Along with the new draft, a 201 pages long digest was published. The digest details the comments received along with the changes made to the previous draft, if any, that were made in response. If anything they make clear that the committee has carefully considered all suggestions.

This 16th draft will be discussed later in 2014 at an oral hearing held by the Legal Group, which will also seek input of users on the amendments to the text.

One issue that the legal group will need to tackle is languages. Not for the first time language proves to be a divisive issue. In this draft, two alternatives for rule 14(2) are proposed. The Preparatory Committee could not reach agreement which one to adopt and left both alternatives in the draft.

Rule 14(2) implements article 49 of the UPC agreement, which regulates the language of proceedings at the Court of First Instance. Rule 14(2) in particular sets out the language in which the statement of claim should be drafted. The first alternative for rule 14(2) leaves the precise rules to the contracting state in question. The second alternative does regulate this issue.

Leaving it up to the contracting states sounds like a compromise that is acceptable to everyone, so I'm guessing that will be chosen in the end. On the other hand, that entails a bit of a risk. I'm sure that neither judges nor defendants will be very happy with getting a statement of claim in, say, Romanian. Leaving it up the politicians runs the risk that this is precisely what will be possible. If it is chosen not to regulate this in the rules, I would feel more comfortable if it was left to the local or regional courts to decide. At least they have to deal with the resulting mess.

One other change of interest, pointed out by IPkat, is the new wording of Rule 211. Rule 211 implements article 62 of the Agreement on a Unified Patent Court. According to article 62, the UPC can order the grant injunctions on a provisional basis. Injunctions being the weapon of choice of non-practicing entities, this article is also controversial.

Previously, Rule 211(3) said that "In taking its decision on the Application for provisional measures, the Court shall have the discretion to weigh up the interests of the parties." Now Rule 211 points out that "the Court shall in the exercise of its discretion weigh up the interests of the parties". In addition, part of article 62 was copied into rule 211(3).

Apparently, the point was a topic for debate in the preparatory commission. The digest has a column 'Comments WT'. According to 'WT', "The RoP cannot and should not attempt to change or modify the standards set by Art. 62." (I'm guessing WT is short for Winfried Tilmann, a member from Germany in the drafting commission). But apparently, the rest of the drafting commission did not entirely see it this way and agreed to the subtle change. 

Personally, I really can't see that this compromise on rule 211 will make much of a difference. It will all depend on how the Court of Appeal will enforce Article 62 and Rule 211, something which we won't know until years after the UPC has come into force.

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