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17 January 2024

A not-so literal interpretation: changing languages at the UPC

At the end of last year, a UPC order allowed the defendant to change the language of proceedings from Dutch into English (the language of the patent) before they filed their defence, even though the UPC Rules state that, for a defendant, the application to change the language of proceedings to the language of the patent must be filed “in the statement of defence” (Rule 323.1 of the Rules of Procedure).

On the face of it, the distinction may seem trivial but the interpretation is of practical relevance since it allows a defendant to confirm the language of proceedings before preparing and filing their statement of defence.

In the present case, the claimant had filed an infringement action against the defendant at the UPC Local Division in The Hague. The infringement action was filed in Dutch, which is permitted as an official language of the Netherlands.

The defendant requested a change of language of the proceedings from Dutch into English since they were a small Spanish company and would incur a financial burden in translating the submissions between Dutch, a language which the defendant did not master, and English.

The Court has the discretion to change the language, following Art. 49(5) UPCA and Rule 323, and in this instance the request was allowed. The order noted that both parties have a good command of English, so the change of language would not adversely affect the interests of the claimant, and that the language initially chosen is significantly detrimental to the defendant. Furthermore, the claimant did not put forward a particular justification for not agreeing to the requested change.

In allowing the application, it was noted that Art. 49(5) UPCA does not preclude the application to change the language being made before the statement of defence is lodged.

Moreover, a literal interpretation of Rule 323 would be counter to the general aims as mentioned in the preamble to the Rules of Procedure which notes that “flexibility shall be ensured by applying all procedural rules in a flexible and balanced manner with the required level of discretion for the judges to organise the proceedings in the most efficient and cost effective matter”.

Following the order, the Judge-rapporteur set a time period for the defendant to lodge their statement of defence.

This flexibility in interpreting the rules will be appreciated by defendants who can now gain certainty on the language of proceedings before filing their defence.

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