Our take on some recent decisions of note from the UPC Court of Appeal

Key takeaways:

• Panel Composition: Art. 9(1) UPCA should be interpreted such that the Court of Appeal may decide without technically qualified judges if the appeal relates to non-technical subject matter. Whereas, once technically qualified judges have been assigned, they should deal with the whole dispute, including the non-technical aspects. 
• Public access to written pleadings and evidence: the general principle (Art. 10 & 45 UPCA) is that the register is public and the proceedings are open to the public, unless the balance of interests weighs against that (these interests include confidentiality, personal data protection, the protection of the integrity of proceedings and public order). 
• Reasoned requests: requests for access to court documents must specify the purpose and necessity for access, allowing the judge-rapporteur to balance interests (Rule 262.1(b) RoP). Where there is a direct legitimate interest, rather than a more general one, the balance will generally be in favour of access (with any necessary safeguards). 
• Integrity of proceedings: The protection of the integrity of proceedings is crucial, but once proceedings end or are settled, public access is generally favoured (subject to the protection of confidential information/personal data protection). 

On 17 April 2024 the Court issued its order to change the language of proceedings from German to English in Curio Bioscience v 10x Genomics. 

• In principle, a change of language can be achieved based on Art.49(3) UPCA/R. 321 RoP - upon agreement of the parties; Art.49(4) UPCA/R. 322 RoP - upon proposal of the judge-rapporteur and with agreement of the parties; or Art.49(5) UPCA/R. 323 RoP - upon application by one of the parties.
• Curio, which is US-based, requested to change the language based on Art. 49(5) UPCA. In this context, the Court explained that when deciding on such a request, on grounds of fairness, all relevant circumstances shall be taken into account and should primarily be related to the specific case and the position of the parties, in particular the position of the defendant. If the outcome of balancing of interests is equal, the position of the defendant is the decisive factor. Here, considering that (i) both parties are US companies, (ii) the language of the underlying technology field is English, and (iii) the defendant is smaller than the claimant, so that the disadvantage of the language being different from its company language is a heavier burden than for the claimant, the change of language was allowed. 

Trend:

• Initially German was the predominant language of proceedings, primarily due to the fact that most of the early cases were filed before one of the German LDs and Germany’s announcement that it would also allow English based on Rule 14.2(c) RoP came rather late. 
• In the meantime, English has caught up and is now nearly on par with German (47% for German v 45% for English - 29 March 2024 UPC data). 
• This trend is expected to continue, with English soon becoming the predominant language. This is not only because proceedings can be filed in English at all divisions of the UPC, but more importantly because the UPC judges are advocating using English more and more; non-German native judges appear to be more comfortable with English and there are not enough native German judges to handle a large number of cases in German.
• The trend is also reflected by recent orders of the Court where the language was changed to English e.g. on 15 March 2024 (Edwards Lifesciences v Meril), the Munich LD also ordered a change from German to English (initiated by the judge-rapporteur under Art.49(4) UPCA). 
• In summary, particularly in cases involving non-German companies and where the defendant is smaller than the claimant, requests to change the language of the proceedings into the language of the patent have a reasonable chance of success.”