LD Munich, September 2, 2024, order on change in parties, UPC_CFI_221/2024

The court exercises the discretion granted to it in Rule 305 of the Rules of Procedure to the effect that it does not admit the extension of the complaint by adding a party (a further Defendant).

A comparison with the provision in Rule 263 of the Rules of Procedure on the objective amendment of the complaint, in particular on the extension of the complaint, shows that in Rule 305 of the Rules of Procedure the aspect of the late-filing the application has not been explicitly elevated to a factual criterion excluding a positive decision. However, this does not mean that this aspect does not play a role. Rather, the regulation grants the court broad discretion to allow an extension of the claim despite any late-filing the application due to other considerations, such as procedural economy. However, it must always be borne in mind that the entire procedural rules are characterized by the provision of a expeditious procedure with sufficient opportunity for all parties to be heard.

The present application for subjective amendment of the complaint (by adding a party) is deemed to have been late filed. If the Claimant had made further researches, it could have retrieved the annual report (of another Defendant, pointing to a Defendant to be added), which has been available online since August 4, 2023, at an earlier date than February 18, 2024, and accordingly filed the application subjective amendment of the complaint much earlier than June 5, 2024.

It is not known whether the Defendant to be added will make use of its right to file an independent nullity complaint. If it does so, it would not be limited to what other Defendants have presented so far with regard to the nullity attacks. In such a situation, however, the Claimant as patent proprietor would also have to be given the opportunity to defend itself against these new nullity attacks, including with a further (auxiliary) request for amendment of the patent. Consequently, the written proceedings could not be shortened, if at all, to such an extent that the planned proceedings at the end of January 2025 could still be sensibly prepared and carried out. Therefore, considerations of procedural economy do not require the late-filed request to be admitted.