LD Dusseldorf, 16 January 2024, Order of the President of the Court of First Instance, UPC_CFI_373/2023

R. 321.1 RoP and R. 322 RoP do not preclude the admissibility of an application to use the language in which the patent was granted which is filed before the statement of defence. Rather it is to be understood that such a request is to be filed at the latest when lodging the statement of defence. An obligation for the defendant to wait with the request until the statement of defence would likely slow down the course of the proceedings.

Art. 49 (5) UPCA requires that the decision whether or not to change the language of the proceedings into the language in which the patent was granted be determined with regard to the respective interests at stake without it being necessary to constitute a disproportionate disadvantage. It may be sufficient that – amongst all relevant circumstances also to be considered – the language initially chosen is significantly detrimental to the applicant. In the instant case, it weighs in favour of the applicant/defendant that they are a SME.

According to R. 7.1 and R. 14.4 RoP, written pleadings and other documents shall be lodged in the language of the proceedings; otherwise, the Registrar shall return them. However, the Rules do not provide for any consequences for a case in which written pleadings and other documents are lodged in a language that differs from the language of the proceedings are not returned by the Registrar. In the context at hand, the Court saw no relevant reason to reject the submission.