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CoA of the UPC – Decisive circumstances for changing the language of the proceedings before the UPC
CoA of the UPC, decision of 17 April 2024 – UPC CoA 101/2024 – 10x Genomics Inc. / Curio Bioscience Inc.
In its decision of April 17, 2024, the Court of Appeal of the Unified Patent Court laid down guidelines for a request to change the language of the proceedings pursuant to Art. 49 (5) UPCA, R. 323 RoP.
I. Facts of the case
The parties are involved in a summary proceeding before the Local Division Düsseldorf. Both parties are US-companies. Opponent was represented by a law firm based in London. However, Opponent’s legal representative is also admitted to the bar in Germany and is capable of speaking German. Opponent claims to be an SME.
After the oral hearing, Opponent filed a request to change the language of the proceedings to English, which the court of first instance rejected. Opponent appealed against this decision.
II. Decision of the Court of Appeal
The Court of Appeal overrules the decision of the court of first instance.
The court clarifies that when deciding on a request to change the language of the proceedings, all relevant circumstances have to be taken into account. Relevant circumstances should primarily be related to the specific case and the position of the parties.
Of particular importance is the language of the patent which the patentee (here: Applicant) chose when filing the patent application. Having chosen a language, the patentee has to take into account that it might have to carry out proceedings in that language.
The language of the concerned technology field, i.e. the language primarily used in the technology field, is also relevant.
Finally, the nationality or domicile of the parties is a relevant party-related circumstance. A party must be able to fully understand what is submitted on its behalf by its representative and by the opposing party.
In contrast, the language skills of a party’s representative are not relevant. The nationality of the judges is also not a relevant aspect.
If the outcome of balancing the interests of the parties is equal, the position of the opponent is decisive.
Applying these general principles, the Court of Appeal came to the conclusion that Opponent’s interests in the change of the language of the proceedings prevail. In particular, having to negotiate in a different language is a heavier burden for Opponent than for the Applicant. This is because Opponent is in any case a smaller company than the Applicant.
III. Conclusion
In its decision, the Court of Appeal lays down guidelines for a request to change the language of the proceedings. The language of the patent and the language of the technology field concerned are of particular importance here.
If a party does not speak the language of the proceedings, this circumstance is not compensated for by the language skills of its legal representative.
It remains to be seen whether the use of the English language in proceedings before the UPC will increase after this decision. Since European patents are often written in English language, this is an aspect that might speak for English as language of the proceedings. However, this is not the only relevant aspect.
In this respect, it also has to be considered that the Plaintiff generally has the possibility to determine the language of the proceedings according to R. 14.2 RoP.