The Rules of Procedure govern how UPC proceedings are conducted, comprising written, interim and oral stages.
The rules provide for a decision on validity and/or infringement within one year. This is achieved by a fixed and compressed timetable during the written stage of proceedings. The written stage will likely require some ‘front-loading’ for patentees as their pleadings must set out their proposed claim interpretation.
The procedural framework is a mixture of both common law and civil law traditions. In particular, an extensive range of evidential tools are available including: hearing the parties, requests for information, production of documents, hearing witnesses, expert opinions, inspections, experiments and affidavits. However, there is no general disclosure obligation, and cross-examination of witnesses and experts will be limited. A particularly interesting aspect is the availability of orders preserving evidence (saisie) which may be available against an alleged infringer even before an action is launched, and potentially on a without notice basis.
In addition to bifurcation and the resulting ‘injunction gap’, many are concerned about how different panels may approach the award of final injunctions. Whilst an injunction is a discretionary remedy, the UPC Preparatory Committee has suggested that only in “very exceptional circumstances” will the Court decide not to order an injunction.
A patentee may also seek a provisional injunction which, given the potential geographical scope, will have significant consequences. The grant of a provisional injunction is also discretionary and judges are given very limited guidance in the Rules. It is inevitable that, even once the Court of Appeal begins to issue clarificatory decisions, there will be variations of approach between different panels in the exercise of their discretion, based on existing practices before national courts.
A party that is concerned that provisional remedies may be sought against it may lodge centrally at the UPC Registry a protective letter in which it can set out its arguments on infringement and /or validity. The aim is to ensure that these arguments are before the panel on any subsequent application. If a provisional injunction is granted, the UPC may order security for any injury caused as a result, which may be a significant amount given the potentially broad geographical scope of the injunction (however it appears that security will not be granted in favour of third parties).