What does 'front-loaded' mean in the UPC?

The UPC Rules of Procedure introduce a ‘front loaded’ procedural system in which a claimant is expected to elaborate its arguments and evidence in concrete terms in its first pleading – the statement of claim. But, given the tight timing between rounds of pleadings in the UPC what, if any, degree of flexibility is there to amend a case as it proceeds? 

Two recent orders in the UPC suggest there may be different views: one stricter than the other:

A flexible approach

In OrthoApnea v Vivisol[1], the Judge-Rapporteur of the Brussels Local Division, Sam Granata, states that front-loading is intended to avoid overly summary or unsubstantiated submissions, consisting of general pleas, so that a defendant can provide a concrete defence. 

The benchmark for assessing whether this has been complied with, the judge says, should be a reasonable and prudent person placed in the same circumstances.

The judge also refers to the use of the terms "indication" and "where available", in Rule 13 which governs the statement of claim, as implying a limitation of an overly strict application of the front-loaded system.

It is necessary, Granata says, to view front-loading in the context of the ‘procedural-evolutionary’ course of a dispute in the UPC: a claim is usually followed by a defence, after which the claimant is given the opportunity to further elaborate on its claims and resources or to develop alternative resources in reply. The right of defence also allows an opposing party to adjust or supplement its arguments. 

The limitation on this procedural-evolutionary course of a judicial dispute is found in Rule 263, which requires an amending party to apply to the court and explain why a change in case or amendment is necessary.

The judge-rapporteur also points to the flexibility in the system that allows an additional pleadings round[2] and in the course of the interim proceedings additional conclusions from the parties[3]. These are supplemented by the general principles of flexibility, reasonableness and fairness set out in the UPCA.

In this case, the claimant was held to have behaved as a normal and prudent person in seeking to amend their case to include a claim of infringement by equivalents. The new facts, arguments and amended case were in line with the original subject of the Statement of Claim and could be regarded as an answer to the Statement of Defence that fits in with the procedural evolutionary course of a legal dispute.

A stricter view?

OrthoApnea should, however, be read together with Bitzer v Carrier[4]. In this case, the grounds for revocation raised in the claimant’s reply, which could have been included in the initial statement of revocation, were held inadmissible by the panel of the Central Division Paris. 

It was held that the amendments did not relate to the content of the defence raised by the opposing party or to the application that was also being made to amend the patent in suit. The new grounds raised in the reply were therefore, according to the panel, not a legitimate response to the defence. 

The proposed amendments were, the Central Division Paris added, in general, contrary to the front-loaded character of UPC proceedings.

A settled approach?

An appeal decision on the OrthoApnea order is expected but, in a related appeal, Klaus Grabinski has already stated that the amendment in that case was not “manifestly erroneous” given the procedural-evolutional course of the case, and patent litigation under the Rules of Procedure in general[5].

As a comment, it is inevitable sometimes that, as a case develops, new facts and arguments may arise or become necessary, particularly after a defence is received. This is most marked in FRAND cases. Some flexibility in the UPC's approach to front-loaded proceedings is therefore likely to be welcomed by parties and practitioners.
 

Join us when we will be discussing more about the UPC at this year's Pharma Forum on 11 September: Pharma Forum.

[1] Local Division Brussels, OrthoApnea v Vivisol, ORD_37783/2024, UPC_CFI_376/2023, Granata (8 July 2024).

[2]Rule 36.

[3]Rule 104.1.(e).

[4] Central Division Paris, Bitzer v Carrier (decision), UPC_CFI_263/2023, Thomas, Catallozzi, Keltsch (29 July 2024).

[5] Court of Appeal, OrthoApnea v Vivisol, App_42818/2024, UPC_CoA_430/2024, Grabinski (26 July 2024)