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Thursday, 6 March 2014

BREAKING (ish): 16th Draft UPC Rules of Procedure out now!

The AmeriKat purring away at the thought
of the 16th Draft
(photo courtesy of Joe Delaney of 3 New Square)
After a very long day, it feels like Christmas morning for the AmeriKat. Having languished over the 15th Draft of the Rules of Procedure of the Unified Patent Court for so long, she is purring loudly over the just-today-published 16th version published on the Preparatory Committee's website. But that's not all, folks! The Preparatory Committee has also published a handy table which sets out the suggested changes proposed by the public during last year's consultation and the expert group's responses to the suggested changes. She has not yet had time to review the changes and the 200 pages of comments to the public's observations, but she did notice one key change.

The AmeriKat has been a vocal opponent to the drafting of Rule 211(3) - the provision which only gave judges the discretion as to whether or not to weigh up the interests of the parties (see here). However, she notices a welcome change to the Rule which now reads as follows:
In taking its decision, the Court shall in the exercise of its discretion weigh up the interests of the parties and, in particular, take into account the potential harm for either of the parties resulting from the granting or the refusal of the injunction.
For readers not in the vicinity of the AmeriKat (although her colleagues can vouch for it), the AmeriKat, having read this revision, is purring ever so loudly....

In the meantime, the Preparatory Committee writes:
The Expert Group chaired by Mr. Kevin Mooney has carefully studied the comments received by the Secretariat of the Preparatory Committee in the written consultation on the Draft Rules of Procedure of the future Unified Patent Court which was open from 25 June to 1 October 2013. As a conclusion from its thorough discussions it has presented a revised 16th version of the draft Rules of Procedure in which the amendments to the previous version appear in mark-up mode. Alongside a comprehensive digest is published which was prepared by the Expert Group for their discussions containing explanations on the approach taken. Henceforth the work is taken up under the chairmanship of Johannes Karcher in the Legal Group of the Preparatory Committee which will now examine the draft set of rules at the level of participating EU-Member States.

The publication of the 16th draft of the Rules of Procedure is not intended as a call for a fur-ther round of written comments but for information only. Any comments should be submitted at the oral hearing planned to be held by the Legal Group in the course of this year which will seek input of users on all suggested amendments to the text since the written consultation. For further information on the timing of the oral hearing please consult at regular intervals the roadmap of the Preparatory Committee which will appear on this website.
The AmeriKat cannot wait to attend (if she can) that oral hearing (cue more purring). Purrrrr.......


Anonymous said...

"In taking its decision, the Court shall in the exercise of its discretion weigh up the interests of the parties and, in particular, take into account the potential harm for either of the parties resulting from the granting or the refusal of the injunction." nothing about third parties then.

Similarly, Rule 213 (2) has nothing about compensating third parties if the injunction turns out to be wrongly granted.

Thus, if we go in the UPC and you get an injunction (pan-European) then you don't have to worry about the tricky issues presented by mechanisms such as Para 5.1A of the Practice Direction to CPD Part 25 (that you would have otherwise had to worry about in England & Wales at least).

Who was it who drafted these rules....?

Anonymous said...

The Change to Rule 213 wasn't necessary because any Court that has some brain (i.e. which is not in the US) will of course automatically consider if its decision causes potential harm. So what's the fuzz anyway!

Anonymous said...

You assume that the UPC court is going to have "some brain". Er, not so sure about that one. Just a quick scan at the quality of the patent decisions coming out of local courts across Europe tells you all you need to know about how variable the decisions are going to be from the various divisions of the UPC.

Anonymous said...

Together with the 16th draft of the rules of procedure comes the 7th draft proposal for European Patent Litigation Certificate and other appropriate qualifications !



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