INTRODUCTION Contributed by: Gordon Harris and Vittorio Cerulli Irelli, Trevisan & Cuonzo
The single Court of Appeal is based in Luxem - bourg, which is also the home of the CJEU. The role of the Court of Appeal is crucial. Although all the Local Divisions are operating under the same procedural rules, judges will have differ - ent backgrounds, increasing the likelihood of some divergence in the early decisions on the key patent law principles. The job of the Court of Appeal is to create consistency and to establish clear doctrines in relation to important patent controversies like the doctrine of equivalents, file wrapper estoppel and approaches to claim construction. In addition, there are two Centres for Arbitration and Mediation of patent disputes, in Lisbon and Ljubljana. In the Local/Regional Divisions, cases are heard by a panel of three legally qualified judges and typically one technically qualified judge. In the Central Division, the panel comprises two legally qualified judges and one technically qualified judge. The Court of Appeal comprises three legally and two technically qualified judges. The judges, along with the mediators and arbi - trators, are all regularly trained. The training cen - tre in Budapest is not yet operational, pending ratification of the UPCA by Hungary, and training takes place in other locations, selected by the Court on a case-by-case basis. Operation and Procedure of the UPC The Local Divisions are decentralised and oper - ated locally, though actions in all divisions can be commenced using the UPC’s Case Manage - ment System (CMS) – an online resource that governs the commencement and management of all UPC cases at all levels. More information on the CMC can be found at the UPC’s website.
All the first instance Divisions and the Court of Appeal are operated in accordance with the Rules of Procedure of the Unified Patent Court. This is a comprehensive set of rules governing all circumstances arising in the conduct of litiga - tion before the UPC. If a question of EU law is referred to the CJEU, then the rules of that court apply to the procedure. The UPC rules stipulate a strict timescale for the conduct of cases in all first instance divi - sions. The objective is to deliver effective and high-quality justice in a timely fashion. Accord - ingly, the rules stipulate that all cases should be completed approximately 12 months after they are commenced. There are rules governing the necessary content of initial pleadings, as well as detailed provisions regarding issues such as evidence gathering, the conduct of experiments, possible cross-exami - nation of witnesses, and very limited orders for the disclosure of documents. The rules are an amalgam of rules from many of the countries participating in the UPC, and indeed UK proce - dure as it was involved in the preparatory stages. There are provisions for significant cost recov - ery by the successful parties – something that is generally not common in European patent liti - gation. Jurisdiction – Commencement of Actions The Rules of the UPC provide for the nature of the jurisdiction, which is in line with the Recast Brussels Regulation and the Lugano Conven - tion. Infringement actions should be brought in the Local or Regional Division for the country where the defendant is domiciled. If that country does not have a Local or Regional Division then the
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