The main proceedings before the UPC consist of three procedural steps: the written procedure, the interim procedure, and the oral hearing. According to Rule 10 UPCARoP, all inter partes procedures before the Court of First Instance are divided into those three parts. The same applies for the appeal procedure before the Court of Appeal. The same structure, according to Rule 85 UPCARoP, is applicable for the proceedings in actions against a decision of the EPO concerning the EPO’s functions assigned to it pursuant to Art 9 EPUE Reg.
A protective letter is a written defence against a later application for provisional measures. It is submitted by the future defendant and is an equivalent for the defendant, whose options to defend himself in the procedure for provisional measures are substantially curtailed if: (1) pursuant to Art 62(5) in connection with Art 60(5) UPCA, the Court can order provisional measures without a prior hearing of the defendant, if particular urgency justifies such procedure; and (2) the Court, for ordering provisional measures, needs only a sufficient degree of certainty (a) that the applicant is entitled to commence proceedings, (b) that the patent in question is valid, and (c) that the right of the applicant is being infringed (Rule 211.2). Therefore, the applicant need not prove the relevant facts to their fullest extent but to the full conviction of the Court. This puts the applicant in a strong position.
The Lisbon Treaty introduced a more specific legal basis for the creation of European intellectual property rights. According to Art 118(1) of the Treaty on the Functioning of the European Union (TFEU), measures for the creation of European intellectual property rights are to be established by the European Parliament and the Council acting under the ordinary legislative procedure. Art 118(2) TFEU, however, sets out a specific legal basis for the language arrangements for European intellectual property rights, which are to be established under a special legislative procedure by the Council acting unanimously after consulting the European Parliament. Therefore, the translation arrangements for any unitary patent system in the EU must be established by a separate regulation.
An examination of the application by the Registry is necessary for a decision on an application for provisional measures. First, the Registry checks whether an opt-out has been declared for the patent at issue (Rule 16.1). If an opt-out has been declared, the Registry informs the applicant pursuant to Rule 16.1 and requests him to withdraw or to complete the application.
In proceedings for declaration of non-infringement, the defendant is entitled to lodge a preliminary objection. The time limit is one month from the date of service. For details, → Rules 19, 20, and 21 UPCARoP.
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