UPC shifts towards English as the lingua franca

In a significant judgment, the UPC Court of Appeal in Curio Bioscience v 10x Genomics*, has made a decision that is likely to shift the language of UPC proceedings predominantly in favour of English. 

The Court has held that, when deciding on a request to change the language of proceedings into the language of the patent on grounds of fairness, the relevant circumstances that will be taken into account, in particular as regards the position of the defendant, will include:

• The language mostly used in the field of technology involved and, of particular relevance, the language the evidence (including prior art) is primarily written in.
• The nationality or domicile of the parties – a party must be able to fully understand what is submitted by a representative on its behalf and what is submitted by its opponents.
• The size of the parties relative to each other – a multinational company with a substantial legal department has more resources to deal with and co-ordinate international disputes in different languages than a small company with limited resources that is only active on a limited number of markets (although note the point below about SMEs in this case).
• How a change of language will affect the course of the proceedings and may lead to a delay, especially in relation to the urgency of the case.

If the outcome of balancing of interests is equal, the position of the defendant is the decisive factor.

Curio Bioscience had argued that both parties were US companies, that the language of the underlying technology field was English, that the infringement evidence 10x Genomics relied upon was almost exclusively in English, and that the majority of the evidence Curio Bioscience relied on for its defence was also in English.

At the same time 10x Genomics' argument that the fact that 20% of EU citizens would speak German as a native language and 10% as a foreign language, was held not to relate to the dispute, or to the parties.

Curio Bioscience also argued that it was an SME, and a much smaller company compared to 10x Genomics. The Court of Appeal nonetheless took the view that this was not decisive in this case. 

The majority of European patents are granted in English, and English is the language used in the publication of most fields of technology. It is therefore likely that this decision will signal a general shift in the language of UPC proceedings towards English where the defendants are multinationals.

 (*App_12116/2024, UPC_CoA_101/2024 (17 April 2024)).