1. The UPC in the European Patent Litigation landscape
Willem A. Hoyng
AIPLA Annual Meeting
23-25 October 2014, Washington DC

2. UPC Proceedings (5 minutes)
Front loaded
Continental with touch Anglosaxon
First part (“written proceedings”): In writing, two exchanges of written submissions
Second part (“interim proceedings”): the judge rapporteur makes sure everything is ready for oral hearing
Third part (“oral proceedings”): In principle: one day hearing: oral argument plus – as far as relevant - hearing witnesses, experts (under the control of the presiding judge)
Decision in about 12 months
Fourth and fifth part: Damages and costs: optional
Privilige: Litigation privilige for lawyers and patent attorneys (also in house) as to confidential communication in which they act in their professional capacity
Will in house privilige survive? (Germany is against; see also ECJ)

3. Rules on discovery (2 minutes)
In accordance with Enforcement Directive (art. 6, 7, 8)
Pre trial (ex parte) seizure of documents, samples etc.
Pre trial freezing of assets
(Pre trial?) ordering a party or third party to produce evidence (art. 59 Treaty) Rule 190
During proceedings: order to communicate information, order to do experiments
No hearing of witness, experts prior start of proceedings (so no deposition)
PS: Judge Rapporteur can ask to produce documents etc.

4. Judge Rapporteur (2 minutes)
Adversial but with inquisitorial possibilities
Can give further extensions in written phase
Can organise (by telephone or video) interim conference
Can ask: further clarification, produce evidence, produce specific documents, order separate witness and expert hearing before panel and in general what he deems necessary as prep for oral hearing
Can “prepare” witnesses and experts
President (court) determines what is relevant and leads the interrogation. Parties are allowed to ask questions
Sanction: decision by default by the Court (“may”)

5. Timing / Costs (5 minutes)
Writ of summons: check by registry
Answer / counter claim: three months
Reply / answer counter claim (amend patent): two months
Rejoinder / reply counter claim: one months
Rejoinder counter claim: one month
But Judge Rapporteur can give extensions or allow further pleadings
Interim proceedings: 3 months (Judge Rapporteur)
Oral hearing 1 day or exceptionally more
Judgement: endeavour 6 weeks (118.7)
Loser pays in accordance with art. 69 of the Agreement (118.6)
Art. 69: ceiling for costs in ROP: ROP refers to Admin Com (152.2). Is this in accordance with Enforcement Directive art. 14?

6. Forum Shopping (2 minutes)
Favourable for patentee: He can choose
Place of residence or principle business or business (broad!)
Place of (threatened) infringement (internet)
Co-defendants (same infringement plus commercial relationship)
Agreement with defendent
Torpedo: invalidity or declaration of non infringement in central division can be moved to local / regional division of choice by patentee
Central court if infringement in Malta, Luxembourg or one of the defendants is from outside EU
NB:
Unilever clause: defendent can avoid regional court and have case referred to the central court in case of infringement in the territory of three regional courts
Paneuropean injunctions including Turkey, Spain etc. possible? (See art. 31 Treaty but also Regulation no 542/2014))