UPC and language: a transition towards English?

On 18 October 2023 the President of the UPC Local Division The Hague issued an interesting order allowing the switch of the language of the proceeding from Dutch to English.

Background of the case

An infringement action was brought before the UPC Local Division of The Hague. The applicant chose Dutch as the language of the proceedings. The defendant filed an application referring to R. 322 and to R 323 RoP asking to change the language of the proceeding from Dutch into English.

The applicant argued that:

i) being a Spanish start-up, the company had to bear considerable costs and therefore had a disproportionate and unnecessary financial burden to translate and participate in the proceedings in Dutch, whereas one of the purposes of the UPC system is to make European patent litigation affordable for small and medium-sized enterprises;

ii) the opposing party was an international company using English as its working language;

iii) English is the original language in which the patent was granted;

iv) the previous correspondence between the representatives of both parties was in English.


The Respondent replied that:

i) no disproportionate, unnecessary burden and disadvantage were to be suffered by the counterparty;

ii) the choice of Dutch language was obvious in the context of Dutch parties and representatives acting before the Dutch local division of the UPC;

iii) the position of the other party was fundamentally financial and mostly related to the translation costs which would not be disproportionate.

Lacking any agreement among the parties on the request, the Judge Rapporteur forwarded the application to the President of Court of First instance.

The decision

While the admissibility of the application was not formally challenged, the President of the Court noted that the aim of efficiency and the general obligation for the parties to set out their case as early as possible, the time limit set out in R. 323.1 RoP is to be understood as a time limit at the latest when lodging the statement of defence.

The President of the Court granted the application and ordered the change of the language of the proceeding into English, by referring to Art. 49 (5) UPCA that allows the use of the language in which the patent was granted and that the language of the proceeding can be decided on grounds of fairness and by considering all relevant circumstances. In this case both parties had a good command of English language, they exchanged prior correspondence in English and the use of English would not affect the position of the party claiming infringement. The decision to change the language of the proceeding does not require necessarily a disproportionate disadvantage for the party, but it is sufficient that language initially chosen by the applicant is significantly detrimental to the other party (e.g. preparatory discussions and work handled in English and submissions then to be translated).

The order can be appealed.


This decision constitutes an interesting precedent allowing defendants to ask a switch to English without needing to argue a disproportionate advantage.   As a practical takeaway, parties do not need to seek native language UPC representatives in local divisions and with English commonly used and understood in patent matters it may reduce the language constraints and transparency of UPC proceedings. Merpel wonders, though, if correspondence will start to be written in local languages to avoid that argument being raised again.  



UPC and language: a transition towards English? UPC and language: a transition towards English? Reviewed by Anna Maria Stein on Saturday, October 21, 2023 Rating: 5


  1. Even if English is a language commonly practised in IP circles, it is anything but certain that the UPC will see a translation towards English.

    The experience with OP before the EPO shows that simultaneous interpretation is widely used when the parties want their arguments to be well understood.

    In procedures before the UPC, contrary to procedures before the EPO, the court does not provide simultaneous interpretation. Only costs for simultaneous interpretation for the benefit of the panel shall be borne by the court.

    According to R 109.5 UPCA, “Costs for simultaneous interpretation are costs of the proceedings to be decided upon under Rule 150 except where a party engages an interpreter at its own expense under paragraph 4; these costs are borne solely by that party”.

    Costs for simultaneous interpretation are anything but cheap and can thus be a burden for the losing party in spite of ceilings for recoverable costs. A party will most probably never provide an interpreter at its own expense as it will have to bear the costs without any chance of recovering the corresponding costs.

    If the patent has been granted in a language other than English, the necessity of simultaneous interpretation will inevitably arise. Even if the parties agree on English and the panel approves, the costs will have to be borne by the losing party.

    This is one of the hidden niceties of the UPC.

    A question will inevitably occur: if during proceedings before the UPC, a representative did not request simultaneous interpretation and accepted for instance to discuss the case in English, even if the language in which the patent is granted is not English, is the EPO then prepared to give for free simultaneous interpretation?

  2. German is by far the most used language in UPC proceedings. As I always write, "English only" is the biggest opportunity lost by the UPC and the UP.

  3. As long as there will be three official languages in which a European patent is granted, it will remain an illusion wanting to only deal in English before the UPC.
    The costs for simultaneous interpretation would also not be avoided.

  4. I understand that the UPC cannot be amended now but 12 years ago English could (and in my opinion should) have become the only language of the proceedings of the UPC and of the unitary patent, as proposed by several users and member states.

    The EPO is not a branch of the UPC so the UPC is not obliged to use the three official languages of the EPO.

    1. @Patent Robot

      It is politically unthinkable that English will ever become the only official language of the EPO or the UPC. As the UK has left (?) the UPCA (has no exit clause), it is more than wis/hful thinking to have English as sole official language of the UPC.
      You also seem to forget that a patent with unitary effect is a patent granted by the EPO in one of its three official languages.
      There are numerous Rules of Procedure of the UPC in which the language of proceedings before the UPC can be the language in which the patent has been granted.
      In any action before the “central” division, the language of proceedings will be the language in which the patent has been granted.
      That English is a language mastered by most of the people dealing with patents in Europe is not in dispute, but only using English as official language is a no-go.
      During an oral hearing before a local or regional chamber of the UPC, the panel can even decide to hold the hearing in the local official language. Amendments to the patent do then not only have to be filed in the language in which the patent was granted, but also in the local language.


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