The version of the 18th draft of the Rules of Procedure of the Unified Patent Court (UPC) published on 10 April 2017 includes the amendments agreed by the Preparatory Committee in its meeting on 10 October 2016 and in its final meeting on 15 March 2017. The 18th draft of the Rules was adopted by the Preparatory Committee in October 2015 but, as the Court fees and recoverable costs were not agreed until February 2016, a revised version of this 18th draft was later published (in June 2016) to reflect that agreement. Many of the further changes now agreed and included in this latest version (here) are consequential, ‘tidying up’ amendments. Two particular changes to note are the following:
- The list of information required in an application to opt out (Rule 5(3)) has been amended to allow for the possibility of the application being filed by a person other than the patent proprietor/patent applicant/SPC holder or his ‘representative’ (a lawyer or appropriately qualified European Patent Attorney): such a person must include his mandate authorising him to file the application. Rule 5(3) has also been amended to reflect the fact that the European patent or application being opted-out may have more than one proprietor/applicant.
- Where a potential defendant to an application for provisional measures has filed a protective letter, and such an application is then filed, the applicant is sent a copy of the protective letter (Rule 207). Rule 209 has now been amended to include a provision that if the application was made ex parte, the applicant may withdraw it and request that it and its contents remain confidential.
As reported here, this latest version of the draft Rules is still subject to change before adoption by the Administrative Committee during the Provisional Application Phase. As it is the Preparatory Committee’s ‘final’ version, it is expected that any changes will be minor. One such change is already indicated in this latest version: in Annex 1 it is noted that the list of methods available for secure electronic service (referred to in Rule 271.1: Service of the Statement of Claim) will be updated when the Rules are adopted by the Administrative Committee.