Flexible but brief? Expert evidence in the UPC

One of the unusual features of the Unified Patent Court is the way its procedures combine aspects of Europe’s civil and common law jurisdictions.

This is evident from expert evidence. It means for instance that both party-appointed and court-appointed experts may be used, that litigation privilege applies and even, to a limited extent, expert examination.

It also allows flexibility in how expert evidence may be admitted. In particular, together with the pleadings during the written procedure, and/or by order during the interim procedure in which the court prepares the proceedings for the oral hearing.

This flexibility has recently been confirmed by the Munich Central Division in the Sanofi v Amgen proceedings. Here, the claimants applied to admit a new pleading and expert declarations, in order to address new points raised by expert declarations accompanying the defendant’s Rejoinder. 

The defendant argued that pleadings were closed and the claimant should wait until the interim conference to seek permission for the declarations, otherwise pleadings risked spiralling out of control.

Judge-Rapporteur Kupecz allowed the application.

The judge recited the rules that may permit additional pleadings and evidence to be introduced, during the written procedure, interim procedure and indeed at any stage of the proceedings.

Whether the reply to a Rejoinder would be justified is at the discretion of the court. Here, however, the additional pleading and expert declaration addressed only a small number of new points and were relatively short in length (six pages).

But what if the expert evidence had been closer to 50 or even 100 pages? 

While flexible, it is doubtful that the UPC divisions envisage the length of written expert evidence that the common law courts are accustomed to permitting, or the potential for further reply evidence in response. 

Indeed, the oral hearing length of one day or two, would not be sufficient for the court to fully test such an amount of evidence. 

Experience also shows, currently, that the UPC divisions are ordering oral hearings just one or two months after the interim hearing. This allows very little time for the extensive expert evidence introduced at the interim hearing to be considered and responded to.

The UPC is therefore potentially flexible about when evidence is admitted, but it may expect it to be relatively brief.