'Final’ version of draft UPC Rules of Procedure published

14 April 2017

10 April 2017 saw the Unified Patent Court (UPC) Preparatory Committee publish the latest version of the Rules of Procedure on their website.

The draft is still awaiting formal adoption by the Administrative Committee during the Provisional Application Phase which is expected to start in May. It also remains open to scrutiny by the European Commission to ensure compatibility with European Union law.
Changes have been made to Rule 5 which now clearly specifies that an opt-out should be done on behalf of each actual proprietor, which may not necessarily be those currently recorded in the register.

Rule 209, which relates to applications for provisional measures, sees a change that brings parity with the provisions of Rule 194 relating to applications to preserve evidence, and now means that where a request for ex parte provisional measures has been made and a protective letter is already on file, the applicant has the option of withdrawing the application and keeping its contents confidential.
Other amendments include Rule 94 which now provides that in relation to actions against European Patent Office (EPO) decisions, the President of the EPO may be invited to submit comments on any question arising during an appeal, and not just at first instance.

Finally, Rule 97 now indicates that Rule 89 applies to an appeal against a refusal to grant unitary effect, such that a check is made that the appeal meets the necessary formal requirements before it is recorded in the register.

The latest version includes only minor amendments, and so still allows for much flexibility within the procedure meaning. As a result, not all issues are covered and these will need to be settled by the Court through and evolving body of case law. 

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