On
In this order, the CoA decided that the decision to change the language of proceedings can be made at any point before the
The CoA's observation that according to Art. 50 UPCA, the language of the appeal is decided by the language of proceedings in front of the
The CoA discussed the factors it considered when deciding whether to change the language of proceedings. The factors relate primarily to the positions of the parties and the specifics of the case, including:
• the primary language of the field of technology,
• the primary language of evidence (including prior art),
• the nationality or domicile of the parties,
• the relative size and position of the parties, and
• the possible delay to proceedings resulting from the change of language.
The CoA commented that the language abilities of the representatives and the nationalities of the judges should not be considered. This directly over rules some of the Düsseldorf Local Division's earlier reasoning for refusing the request, and further clarifies that regard should primarily be given to the particulars of the case and parties.
The CoA remarked that. Art. 49(5) UPCA “provides that in particular the position of the defendant is to be taken into account”. The CoA referred to the advantages that the claimant has over the defendant in the UPC, including choice of forum and language of proceedings, and the luxury of time (except in urgent cases). The defendant, on the other hand, must comply with very short response deadlines from the moment that they are served the statement of claim. The CoA also highlighted that proprietors of European patents and users of the UPC have accepted that they may have to participate in proceedings in the language of the patent, either in front of the EPO or a UPC central division (pursuant to Art. 49(6)). Reading between the lines, the CoA implied that proceedings in the language of the patent are not and cannot be of detriment to the claimant, therefore concluding that if the interests of the parties are equal, “the position of the defendant is the deciding factor”.
The CoA also commented on the impact of the language of proceedings on assessing infringement, noting, “in infringement actions, the language in which the patent was granted is often of importance”. The importance of language to claim interpretation is demonstrated in the main proceedings (UPC_CFI_463/2023) where a difference in how the English and German claims are construed was relevant to the order for provisional measures. The English claims and their construction, as the language of the patent, formed the basis of the decision.
In
References
1. Case Load of the Court since the start of operation in
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