Preliminary set of provisions for the Rules of Procedure (“Rules”) of the Unified Patent Court

15th draft of 31st May 2013

Status

1. First draft dated 29 May 2009, discussed in expert meetings on 5 June and 19 June 2009
2. Second draft (Part 1, Chapter 1) dated 9 July 2009, Working paper from the Commission Services, Council working document 11813/09, discussed in Council Working Party on Intellectual Property (Patents) on 22 July 2009
3. Third draft dated 25 September 2009, discussed in expert meeting on 2 October 2009
4. Fourth draft dated 16 October 2009, discussed at the 5th European Patent Judges' Forum on 30 and 31 October 2009
5. Fifth draft dated 27 January 2012, discussed in expert meeting on 3 February 2012
6. Sixth draft dated 22 February 2012, discussed by the Drafting Committee on 25/26 February 2012
7. Seventh draft dated 20 March 2012, discussed by the Drafting Committee on 24/25 March 2012
8. Eighth draft dated 30 March 2012, for technical consultation
9. Ninth draft dated 24 May 2012
10. Tenth draft dated 16 October 2012
11. Eleventh draft dated 07 November 2012, discussed by Drafting Committee on 09 and 10 November 2012
12. Twelfth draft dated 29 November
13. Thirteenth draft dated 14 January 2013, renumbered version
14. Fourteenth draft dated 31 January 2013, for further informal comment prior to the public consultation
15. 15th draft dated 31st May 2013, for public consultation

Introductory remarks

The present document contains a draft set of provisions for the Rules of the Unified Patent Court (hereinafter "UPC" or "Court") and the Statute of the Court (hereinafter “Statute”). Basic principles of procedural law are already laid down in Part III of the Agreement on a UPC (hereinafter "Agreement"), for instance proportionality and fairness, case management, right to be heard, publicity, stages of the proceedings etc. The Agreement also contains general provisions on languages, parties, representation, means of evidence, experts, and defines the powers of the UPC to order provisional measures (in particular preliminary injunctions), to issue orders to preserve evidence (saisie-contrefaçon), corrective measures etc.

However, in several places in the Agreement, references are made to the Rules which shall spell out procedural details. This is a tried and tested legal technique: only the basic principles have been included in the Agreement, many procedural details being left for secondary legal instruments.

In accordance with Article 41(2) Agreement, the Rules of the UPC shall be adopted by the Administrative Committee, on the basis of broad consultations with all stakeholders and following an opinion of the European Commission on the compatibility of the Rules with Union law.

The Contracting Member States, having signed the Agreement,have set up a Preparatory Committee in charge of preparing the practical arrangements for the early establishment and coming into operation of the Court. The Contracting Member States acknowledge the importance of appropriate Rules for the Court and of their uniform application, which are vital to guarantee that the decisions of the Court are of the highest quality and that proceedings are organised in the most efficient and cost effective manner.

A small Drafting Committee of expert judges and lawyers was appointed in 2012 to take this work forward.

The eighth draft prepared by the Drafting Committee was the subject of wide technical consultation with professional and industry bodies. A list of respondents who commented on that draft is set out below.

The fourteenth draft was the subject of further technical comment by professional and industry bodies. A further list of respondents is set out below.

The aim of the Drafting Committee remains to assist the Preparatory Committee to complete the draft Rules following a formal public consultation.

Comments on the eighth draft of the Rules were received from the following.

Comments on the fourteenth draft were received from the following.