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UPC Court of Appeal’s first ruling provides guidance for patent litigants
25 Oct 2023, 3:00 pm
A new ruling by the Court of Appeal of the Unified Patent Court (UPC) – the first it has issued since the UPC became operational – provides guidance to businesses on the procedure for and timing of filing and responding to claims, a patent litigation expert has said.
Dr. Julia Traumann of Pinsent Masons was commenting after the UPC Court of Appeal determined that pharmaceutical patent owner Amgen had validly served its claims against rivals Sanofi and Regeneron in respect of patents for two medicinal products that help to lower patients’ cholesterol levels, but nevertheless granted Sanofi and Regeneron an extension to their deadline for submitting a response.
The local division of the UPC in Munich as first instance court had previously also determined that Amgen had validly served its statement of claim on Sanofi and Regeneron on 11 July 2023, despite the fact that the attachments supplementing the statement were not attached and had not been available when the representatives of the defendants accessed the UPC case management system with the relevant access code until 10 August 2023.
In light of the recent decision, claimants before the UPC would be advised to ensure their attachments are submitted in complete at the same time as their statement of claim to avoid delay in proceedings
Sanofi and Regeneron requested that the three-month period for lodging a statement of defence be calculated from 10 August 2023, being the date the annexes were accessible, and thus set to end at 10 November 2023. In their request, Sanofi made an explicit reference to the general principles of fairness and equality of arms which the court considered to represent a request for an extension of the deadline pursuant to Rule 9.3 of the UPC Rules of Procedure (RoP).
The UPC Court of Appeal said, though, that Amgen’s claim had been filed validly in line with the RoP. Traumann said: “The court confirmed that annexes do not have to be served at the same time as the statement of claim provided that – and this is important – the statement of claim, when read without the annexes, enables the defendant to assert its rights in court proceedings before the courts of the UPC."
Nevertheless, the UPC Court of Appeal granted Sanofi and Regeneron an extension to 10 November 2023 to issue their statements of defence. It found that there must be an extension of deadline to compensate for and thus be equal to the period during which the annexes had not been available after service of the statement of claim.
Traumann commented: "In light of the recent decision, claimants before the UPC would be advised to ensure their attachments are submitted in complete at the same time as their statement of claim to avoid delay in proceedings."
“What is particularly interesting is that the English version of the relevant rule in the RoP, Rule 13.2, expressly requires claimants to supply copies of each document referred to in their statement of claim ‘at the same time’ as the statement of claim is filed, while the German version of the same rule does not contain the explicit determination of ‘at the same time’. In its German language order, the Court of Appeal cited the different language wordings as an argument to stress that the documents need to be provided at the same time as the lodging of the statement of claim,” she said.
“For defendants, this case makes clear their scope to successfully apply for an extension to their deadline for submitting statement of defence in cases where they are unable to assert their rights in UPC proceedings on the strength of the contents of the statement of claim alone. In this case, given the delay in the attachments being made available, the UPC Court of Appeal granted an extension of the deadline for Sanofi and Regeneron to submit their statement of defence to ensure principles of fairness and equity in the litigation applied,” she said.
Traumann added that the UPC Court of Appeal will take on an increasingly important role in applying uniform case law on issues pertinent to UPC proceedings as more cases come before it. Until then, she highlighted the potential for different local and regional divisions of the UPC to reach different conclusions and make different interpretations on legal and procedural matters. This, she said, is likely to spur ‘forum shopping’ by parties raising UPC claims in the short- to medium-term.
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