26/07/2023
The Unified Patent Court (“UPC”) is a multinational court on a multilingual continent. As a result, there are a variety of languages available as language of proceedings before the various divisions of the Court of First Instance, and before the Court of Appeal.
The language of proceedings determines in which language documents must be submitted to the UPC, the language in which the UPC corresponds with the parties, and the language of oral proceedings and the decision. Every document filed with the court will need to be translated into the language of proceedings, at the cost of the party submitting the document. This requirement may be dispensed with by the panel of judges in some circumstances.
Language of Proceedings before the Court of First Instance
Before local and regional divisions, an official language of the European Union, or one of the official languages of the state in which the respective division is located, will be the language of proceedings. The respective division may in addition designate one or more official languages of the European Patent Office (English, French, or German) as a possible language of proceedings.
Before the central division, the language of proceedings is the language in which the patent was granted (English, French, or German).
As illustrated in the above table, English is available as a language of proceedings in all local, regional, and central divisions.
With the majority of European patents (about four in five) being granted in English, it can be expected that English will be the language of proceedings for the majority of cases filed before the central division.
English is also widely used in Opposition Division and Boards of Appeal proceedings at the European Patent Office (EPO), and so it can be expected that English will also be widely used before local and regional divisions.
However, knowledge of languages other than English may be useful in cases where English is not the language of proceedings or the native language of the judges.
Language of Proceedings before the Court of Appeal
The language of proceedings before the Court of Appeal will be the same as the language of proceedings before the Court of First Instance – so, if English is used before the Court of First Instance, it will prevail before the Court of Appeal.
Language, and its effect on forum choice
The available languages of proceedings may influence a litigant’s choice of where to file an action (so call “forum shopping”) – Patentees may prefer bringing actions in a local division in their native language, or in a language which is not the defendant’s native language. On the other hand, Patentees whose native language is not English may still prefer bringing actions in English, in particular if there are concurrent English-language litigation proceedings in other jurisdictions or opposition/appeal proceedings before the EPO.
However, when it comes to forum choice, experience with (and of!) local judges, courts and laws may be more important than language. The UPC seeks to amalgamate the litigation practices of participating member states (as exemplified by the availability of both Protective Letters and saisie orders), so experience across civil and common law jurisdictions will be helpful in proceedings before the UPC. In recent years, Reddie & Grose attorneys have been involved in litigation in many of the countries hosting local and regional divisions which has helped us to develop a reliable network of local attorneys across the EU.
The importance of (non-native) English
As already set out above, English will likely play a major role in proceedings before the UPC. It is the language in which a majority of European patents are granted and available as a language of proceedings in every local and regional division. Indeed, English is widely used for business and legal correspondence, and thus may be seen as an obvious choice for many actions.
One important consideration is that for almost all UPC judges, English will not be their native language. This is similar to the situation at the EPO and the Boards of Appeal, where English is a second (or third) language for many examiners and members of the Boards of Appeal. Judges on each panel of the UPC will have a variety of backgrounds, and this must be taken into account when formulating arguments.
With the majority of our work being before the EPO, our attorneys are used to working in this type of environment on a daily basis; both in oral proceedings and in their written communications. Knowing how to prepare persuasive arguments for a non-native speaking audience is a unique skill-set. Whilst it may sound obvious, emphasising the substance of an argument invariably beats the linguistic flourishes and subtle tones that are common in many national proceedings.
Conclusions
English will be one of the, if not the, predominant language in proceedings before the UPC. For most UPC judges, English is not a native language so the situation mirrors proceedings before the EPO, with which our attorneys at Reddie & Grose are very familiar.
Even for those actions where English is not selected as the language of proceedings, the language capabilities of our attorneys, and our established network of local EU attorneys, means that we are well positioned to support any scenario that may arise before the UPC.
If you would like to learn more about deciding where to bring an action and the languages of proceedings before the UPC, or you need assistance in defending against an action before the UPC, please do not hesitate to contact us for more information.
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.
