The Legal Framework of the Order to preserve evidence (Saisie) before the UPC

Although the Agreement on a Unified Patent Court (“UPC Agreement”) provides a broad and non-limited list of means to give and obtain evidence (Article 59) it seems to give a key role to the order to preserve evidence provided by Article 60 that aims at granting prompt and effective provisional measures to preserve relevant evidence in respect of the alleged infringement.

Rules of procedure of the Unified Patent Court No.192 to 198 (“Rules of Procedure”), provide with further details relating to the requirements and implementation of these measures for preserving evidence.

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Service of written pleadings, orders, decisions and other documents before the UPC

An action according to Article 32(1) of the UPC Agreement is introduced when the plaintiff lodges a corresponding Statement or Application at the UPC Registry (Rule 4 RoP). Then, Chapter 2 of Part 5 of the Rules of Procedure (RoP) provides for a number of provisions related to the service by the Registry of all documents related to this action (Rule 6 RoP). This Chapter 2 (Rules 270-279 RoP) is subdivided in four sections.

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German Court delays UPC Ratification

The German Constitutional Court (Bundesverfassungsgericht) has delayed the ratification of the Unified Patent Court (UPC) Agreement (http://www.lto.de/recht/nachrichten/n/bverfg-stoppt-eu-einheits-patent-verfassungsbeschwerde/) as became known today.

The Constitutional Court has asked the Federal President of Germany to put the process of ratification on hold following a constitutional complaint filed by a private person. The Office of the Federal President informed the court that the process was “suspended” following the request. The constitutional complaint relates to the law ruling the Unified Patent Court, but as the two are closely related, the entry into force of the Unitary Patent has also been put on hold.

At this point, Germany and the UK have not yet ratified the UPC Agreement, which requires 13 signatories including those two countries plus France before the UPC can be launched.

Now, concerns have been raised that Germany will not be able to ratify the protocol on the provisional application for quite some time.

Those events will probably have a significant impact on the entry into operation of the entire UPC package.

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UPC – Timetable Update

The UPC’s Preparatory Committee released an update (https://www.unified-patent-court.org/news/upc-timetable-update-june-2017 ) yesterday confirming the expected delays for the entry into operation of the UPC Agreement.

The Committee confirms that the entry into operation of the UPC will not take place in December 2017 as predicted, due to delays in several countries, especially in England, concerning the finalisation of national procedures for the ratification of the UPC Agreement and the participation in the Protocol on Provisional Application.

We monitor the issuance of the new timetable that the Committee is to publish.

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Representation: How will a European Patent Attorney obtain an independent right to represent clients before the UPC?

According to Article 48(2) of the Agreement on a Unified Patent Court (UPC Agreement), European Patent Attorneys (EPAs) who are entitled to act as a professional representative before the European Patent Office (EPO) pursuant to Article 134 of the European Patent Convention (EPC) may represent parties before the Unified Patent Court (UPC), provided they have appropriate qualifications such as a European Patent Litigation Certificate (EPLC).

The wording of this article suggests that EPAs can prove having suitable qualifications by different means, the EPLC being one of them.

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