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UPC issues decision and guidance on the language of proceedings

Written By Jo Eales Solicitor & Gwion Harfoot Patent Attorney

The language used in court proceedings is often in dispute in cases where the parties are based in different countries and/or where the proceedings take place in a third jurisdiction. Obviously, the language used may affect the cost of the proceedings for one party more than the other in such circumstances, but there may also be other more subtle advantages afforded to one party over the other by the language used in court proceedings. In April 2024, the Court of Appeal of the UPC decided that the language of proceedings should be changed from German to English in a dispute between 10x Genomics and Curio Bioscience. 

In doing so, the Court provided useful guidance on fairness and “relevant circumstances”, including the position of the parties and, in particular, that of the defendant, when considering a request for a change of language in proceedings pursuant to Article 49(5) UPCA.

The guidance will be helpful for parties in considering requests for changes of language in contentious proceedings before the UPC, and we may well see a continued rise in UPC cases being held in the English language. However, each decision would be made on a case-by-case basis, taking into account all “relevant circumstances.”

Case Background

The dispute arose in relation to European Patent EP 2 697 391 (filed in the English language) owned by 10x Genomics, Inc. In the dispute, 10x Genomics applied for certain provisional measures against Curio Bioscience Inc. before the Düsseldorf Local Division of the UPC.

In January 2024, Curio Bioscience applied to change the language of the proceedings from German to English pursuant to Article 49(5) UPCA, which expresses that the President of the Court of First Instance may, on the grounds of fairness and taking into account all relevant circumstances, decide on the use of the language in which the patent was granted as the language of proceedings.

The request was initially rejected by the President of the Court of First Instance, and Curio Bioscience filed an appeal against this rejection.

Summary of Decision

The Court overturned the decision of the first-instance court and decided that the language of the patent, i.e., English, should be used as the language of proceedings here.

The Court expressed that when deciding on a request to change the language of proceedings, all “relevant circumstances” must be taken into account – including those related to the specific case and the position of the parties.

Relevant circumstances include:

  • the language most commonly used in respect of the technology;

  • the language of the evidence (including any prior art) relied upon in proceedings;

  • the nationality or domicile of the parties - i.e., a party must be able to understand what is submitted by a representative on its behalf and submitted by the other side. Therefore, if the language of the proceedings is not the language of a party, they may be at a disadvantage, particularly in terms of time and costs;

  • the size of the parties relative to each other – i.e., a multinational company typically has more legal resources than a small company active only in a few markets;

  • how a change in language will affect the course and timeframe of proceedings.

Irrelevant circumstances include:

  • whether a representative speaks a specific language, as generally they are chosen based on the variety of their skills and their ability to work in cross jurisdictional teams with various skills and languages involved;

  • the nationality of the judges, as translations or simultaneous interpretation at a hearing can be provided if there is fear that switching the language to the language of the patent may impact the case. In this regard, the risk of a delay in proceedings may be reduced by changing the language of a UPC case to English because the case would be opened up to a greater pool of UPC judges as a result of more UPC judges speaking English than any other language.

The Court also noted that Article 49(5) UPCA provides that the “position of the defendant” is to be taken into account. Where the outcome of balancing the interests between the parties is equal, the position of the defendant is the decisive factor.

This is because the claimant has an advantage of deciding the initial language of proceedings, plus where and when to bring its action. However, the defendant must respond – often at speed - and adhere to strict time limits.

Finally, the Court expressed that if a claimant asserts its patent, it should be remembered that they chose the language of the patent at the point of filing. As such, they should anticipate that they may have to litigate in that language (in this case, English). Therefore, proceedings in the language of the patent are not unfair to the claimant.

In applying this logic to the present case, the Court, in allowing the change of language from German to English, summarised the position as follows:

  • the language of the underlying technology is English;

  • the evidence relied upon by 10x Genomics and Curio Bioscience is mostly in English;

  • both 10x Genomics and Curio Bioscience are US companies;

  • Curio Bioscience is a smaller company than 10x Genomics, and therefore, conducting proceedings in German (which is different to their company language) presents a heavier burden on them than it does for 10x Genomics (although this was not a decisive factor in this case);

  • the points raised by 10x Genomics that German is the most widely spoken native language in the EU and Curio Bioscience is active in the German market (and therefore proceedings in German could be justified) were of little relevance as they did not relate to the dispute nor the parties here;
  • although it was recognised that a change in language may cause some delay to proceedings, the additional work would be limited as the Court could deliver its decision in German together with a certified English translation to minimise any inconvenience.

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