2024-04-11 - LD Düsseldorf - Roche v. Tandem Diabetes et al. - UPC_CFI_504/2023

(1) Pursuant to Art. 49 (2) UPCA the Contracting States may designate one or more official languages of the European Patent Office as language of proceedings of their local divisions in addition to an official language of the European Union which is an official language of the Contracting State in whose territory the local division Düsseldorf is located (Art. 49 (1) UPCA). The Federal Republic of Germany has made use of this possibility and has authorised English as an official language of the European Patent Office in addition to German as an official language of the European Union. (2) Pursuant to Rule 14.2(a) RP the applicant may choose either of the two languages mentioned as the language of proceedings. (3) Rule 14.2(b)(4) and (5) of the Rules of Procedure provides that the proceedings are to be conducted in the official language of the defendant where a provision of the Member State having more than one official language so provides and, where there are two or more defendants with different official languages, the applicant may choose the language from among the official languages concerned. According to the wording of the provision, the official language means the official language of the Contracting State. The Federal Republic of Germany does not provide for any official languages within the meaning of this Rule other than German, in particular English. (4) Pursuant to Rule 4.2 of the Rules of Procedure, a party may also submit a document in paper form to the Registry or to a branch of the Registry which cannot be filed electronically because the electronic case management system of the Court is no longer functioning. For this purpose, the document must be delivered to the premises of the sub-registry or the document must reach the sub-registry by other means within the time limit.

The Düsseldorf Local Division (judge-rapporteur Dr. Thom) dismissed two preliminary objections seeking to change the language of the proceedings from German to English. Under Art. 49(1)/(2) UPCA and R. 14.2(a) RoP, the claimant may freely choose between the languages authorised for the Local Division — here German or English, Germany having authorised English alongside German. The exceptions in R. 14.2(b), sentences 4 and 5 RoP did not apply: 'official language' in that rule means an official language of the Contracting Member State, and Germany has only German, not English, as such. A fairness-based review (Art. 49(5) UPCA / R. 323 RoP) was not the right procedural vehicle via a R. 19.1(c) objection and, in any event, would not succeed because the patent language is German. The order also addressed paper filings under R. 4.2 RoP when CMS is down: dropping documents in the overnight letterbox of the Oberlandesgericht Düsseldorf does not stop the clock — the document must physically reach the sub-registry of the Local Division within the (possibly extended) time limit, and the party bears the risk of auxiliary personnel's conduct.