ORD_3365/2024 | EP3456214 | UPC Decision Search

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22 January, 2024	Order	ORD_3365/2024	Paris (FR) Central D…	EP3456214	Rule 9 ...	Please log in to add tags.	Please log in to add notes. Please log in to add tags. Show on UPC ORD_3365/2024 UPC_CFI_308/2023 22 January, 2024 Order Summary (AI generated) Parties NJOY Netherlands BV v. VMR Products LLC Registry Information Court Division: Paris (FR) Central Division - Seat Type of Action: Revocation Action Language of Proceedings: EN Patent at issue EP3456214 Cited Legal Standards Rule 27 Rule 271 Rule 278 Rule 331 Rule 333 RoP Rule 54 Rule 9 Documents Download Order (EN) Add a custom note or summary to this decision Styles Text Heading 1 Heading 2 Heading 3 Bold ⌘B Italic ⌘I Strikethrough ⌘+Shift+S Bullet list Ordered list Blockquote ⌘+Shift+B Insert link ⌘K Insert link Unlink Align Left Center Right Central Division Paris Seat ORDER of the Court of First Instance of the Unified Patent Court Central division (Paris seat) issued on 22 January 2024 concerning the Generic application No. App_159/2024 lodged in the revocation action No. ACT_571565/2023 UPC_CFI_308/2023 HEADNOTES: service of written pleadings KEYWORDS: date of service; request for declaration; judge-rapporteur REFERENCE CODE ECLI: APPLICANT: NJOY Netherlands B.V. - Westerdoksdjik 423, 1013BX Amsterdam, Netherlands represented by Henrik Holzapfel, McDermott Will & Emery RESPONDENT: VMR Products LLC - 560 20th Street - California 94107 - San Francisco - US represented by Bernhard Thum, Thum & Partner PATENT AT ISSUE: European patent n° EP 3 456 214 PANEL: Panel 2 of the Central Division - Paris Seat DECIDING JUDGE: This order has been issued by the presiding judge and judge-rapporteur Paolo Catallozzi SUMMARY OF FACTS AND PARTIES' REQUESTS: The applicant has brought a revocation action against the patent at issue before this Seat of the Unified Patent Court, registered as No. ACT_571565/2023 UPC_CFI_308/2023. On 27 November 2023 the respondent has submitted, via the Case Management System, a defence to revocation, which was considered by the Registry as incomplete. Therefore, on 11 December 2023 the respondent, requested to correct the detected deficiencies, has lodged a corrected statement of defence and on 13 December 2023 the Registry has issued the relative notification of positive outcome following the formal check and has notified the corrected defence to revocation to the claimant though an electronic message. On 3 January 2024 the applicant has submitted an application, registered as No. App_159/2024, requesting, under Rule 9 of the Rules of Procedure ('RoP'), that the Court declares that the defence to revocation was served on the claimant on 13 December 2023 and, as an auxiliary request, that it declares the date of service on the claimant. GROUNDS FOR THE ORDER It must be said that Rule 9 'RoP', which the applicant has based its application on, allows the Court to make procedural orders for the purposes of an active case management. In particular, pursuant to para (3) of Rule 9 'RoP', the Court, on a reasoned request by a party, may (a) extend, even retrospectively, a time period referred to in these Rules or imposed by the Court and (b) shorten any such time period. As the case management is the responsibility of the judge-rapporteur during the written and the interim procedure (see Rule 331 'RoP'), the said judge-rapporteur may alter statutory deadlines where he is requested and deems it appropriate. However, nor Rule 9 'RoP', nor, apparently, any other provision contained in the Rules of Procedure, allows the judge-rapporteur to inform a party (even where upon its request) of the exact deadline provided for by statutory rules before it expires. Equally - and more in general - it is not the judge-rapporteur's task to give the interpretation of statutory provisions or the assessment of facts during the course of a proceedings where it may be helpful to one of the parties. That would lead to confer an advisory role to the judge-rapporteur which is contrary to the principles of judicial impartiality (Article 17 of the Unified Patent Court Agreement) and of the right of a fair trial (Article 6 of the European Convention on Human Rights and Article 47 of the European Union Charter of Fundamental Rights). Besides, it may be added that such an assessment of the judge-rapporteur may not be conclusive, as the relevant interpretation of the relevant provisions is not binding for the panel and for the Court of appeal as they may overturn the assessment; in this latter circumstance the party which complies with the judge-rapporteur declaration might result not be complying with the statutory provisions as differently interpreted by the panel or the Court of appeal. It follows that the interpretation of the provisions concerning the date of service of written pleadings and, consequently, the deadline for lodging the reply to the defence to revocation is the responsibility of the parties and the only duty of the Court is to assess whether that deadline has been met. Notwithstanding the foregoing arguments, taking into account that the application of the rules of procedure is at the outset and in order to avoid unnecessary procedural disputes between the parties, this judge-rapporteur will, as an exception, identify the date in which, according to his opinion, the defence to revocation has been served, specifying that, as previously mentioned, this identification does not impede the panel or the Court of appeal to have a different opinion. Pursuant to Rule 27 'RoP', applicable mutatis mutandis regarding to Rule 54 'RoP', the Registry examines whether the lodged defence to revocation complies with the formal requirements and in case of noted deficiencies invites the defendant to correct them. Respectively, the claimant shall be sent the corrected defence to revocation, not the earlier version that does not meet the requirements. Rule 271 (6) (a) 'RoP' states that, in case of service by means of electronic communication, a statement of claim is deemed to be served on the day when the relevant electronic message was sent and this rule is applicable also to the service of the defence to revocation, by virtue of Rule 278 (4) 'RoP', concerning the service of all written pleadings, which refers to. In the current proceedings the notification generated by the system on 13 December 2023 and sent to the Claimant is such 'relevant electronic message', so that date should be identified as the date in which the defence to revocation has been served. ORDER For these grounds, the judge-rapporteur declares that the defence to revocation was served on the claimant on 13 December 2023. Issued on 22 January 2024. The Judge-rapporteur Paolo Catallozzi REVIEW Pursuant to Rule 333 RoP, the Order shall be reviewed by the panel on a reasoned application by a party. An application for the review of this Order shall be lodged within 15 days of service of this Order.

ORD_3365/2024

Central Division Paris Seat

ORDER

of the Court of First Instance of the Unified Patent Court

Central division (Paris seat) issued on 22 January 2024 concerning the Generic application No. App_159/2024 lodged in the revocation action No. ACT_571565/2023 UPC_CFI_308/2023

HEADNOTES: service of written pleadings

KEYWORDS: date of service; request for declaration; judge-rapporteur REFERENCE CODE ECLI:

APPLICANT:

NJOY Netherlands B.V. - Westerdoksdjik 423, 1013BX Amsterdam, Netherlands represented by Henrik Holzapfel, McDermott Will & Emery

RESPONDENT:

VMR Products LLC - 560 20th Street - California 94107 - San Francisco - US represented by Bernhard Thum, Thum & Partner

PATENT AT ISSUE:

European patent n° EP 3 456 214

PANEL:

Panel 2 of the Central Division - Paris Seat

DECIDING JUDGE:

This order has been issued by the presiding judge and judge-rapporteur Paolo Catallozzi

SUMMARY OF FACTS AND PARTIES' REQUESTS:

1. The applicant has brought a revocation action against the patent at issue before this Seat of the Unified Patent Court, registered as No. ACT_571565/2023 UPC_CFI_308/2023.
1. On 27 November 2023 the respondent has submitted, via the Case Management System, a defence to revocation, which was considered by the Registry as incomplete.
1. Therefore, on 11 December 2023 the respondent, requested to correct the detected deficiencies, has lodged a corrected statement of defence and on 13 December 2023 the Registry has issued the relative notification of positive outcome following the formal check and has notified the corrected defence to revocation to the claimant though an electronic message.
1. On 3 January 2024 the applicant has submitted an application, registered as No. App_159/2024, requesting, under Rule 9 of the Rules of Procedure ('RoP'), that the Court declares that the defence to revocation was served on the claimant on 13 December 2023 and, as an auxiliary request, that it declares the date of service on the claimant.

GROUNDS FOR THE ORDER

1. It must be said that Rule 9 'RoP', which the applicant has based its application on, allows the Court to make procedural orders for the purposes of an active case management.
1. In particular, pursuant to para (3) of Rule 9 'RoP', the Court, on a reasoned request by a party, may (a) extend, even retrospectively, a time period referred to in these Rules or imposed by the Court and (b) shorten any such time period.
1. As the case management is the responsibility of the judge-rapporteur during the written and the interim procedure (see Rule 331 'RoP'), the said judge-rapporteur may alter statutory deadlines where he is requested and deems it appropriate.
1. However, nor Rule 9 'RoP', nor, apparently, any other provision contained in the Rules of Procedure, allows the judge-rapporteur to inform a party (even where upon its request) of the exact deadline provided for by statutory rules before it expires.
1. Equally - and more in general - it is not the judge-rapporteur's task to give the interpretation of statutory provisions or the assessment of facts during the course of a proceedings where it may be helpful to one of the parties.
1. That would lead to confer an advisory role to the judge-rapporteur which is contrary to the principles of judicial impartiality (Article 17 of the Unified Patent Court Agreement) and of the

right of a fair trial (Article 6 of the European Convention on Human Rights and Article 47 of the European Union Charter of Fundamental Rights).

1. Besides, it may be added that such an assessment of the judge-rapporteur may not be conclusive, as the relevant interpretation of the relevant provisions is not binding for the panel and for the Court of appeal as they may overturn the assessment; in this latter circumstance the party which complies with the judge-rapporteur declaration might result not be complying with the statutory provisions as differently interpreted by the panel or the Court of appeal.
1. It follows that the interpretation of the provisions concerning the date of service of written pleadings and, consequently, the deadline for lodging the reply to the defence to revocation is the responsibility of the parties and the only duty of the Court is to assess whether that deadline has been met.
1. Notwithstanding the foregoing arguments, taking into account that the application of the rules of procedure is at the outset and in order to avoid unnecessary procedural disputes between the parties, this judge-rapporteur will, as an exception, identify the date in which, according to his opinion, the defence to revocation has been served, specifying that, as previously mentioned, this identification does not impede the panel or the Court of appeal to have a different opinion.
1. Pursuant to Rule 27 'RoP', applicable mutatis mutandis regarding to Rule 54 'RoP', the Registry examines whether the lodged defence to revocation complies with the formal requirements and in case of noted deficiencies invites the defendant to correct them.
1. Respectively, the claimant shall be sent the corrected defence to revocation, not the earlier version that does not meet the requirements.
1. Rule 271 (6) (a) 'RoP' states that, in case of service by means of electronic communication, a statement of claim is deemed to be served on the day when the relevant electronic message was sent and this rule is applicable also to the service of the defence to revocation, by virtue of Rule 278 (4) 'RoP', concerning the service of all written pleadings, which refers to.
1. In the current proceedings the notification generated by the system on 13 December 2023 and sent to the Claimant is such 'relevant electronic message', so that date should be identified as the date in which the defence to revocation has been served.

ORDER

For these grounds, the judge-rapporteur declares that the defence to revocation was served on the claimant on 13 December 2023.

Issued on 22 January 2024.

The Judge-rapporteur

Paolo Catallozzi

REVIEW

Pursuant to Rule 333 RoP, the Order shall be reviewed by the panel on a reasoned application by a party. An application for the review of this Order shall be lodged within 15 days of service of this Order.