Casalonga UPC rules of procedure
Powered by Casalonga

Rule 239Role of the judge-rapporteur

1. Upon the expiry of the periods specified in Rules 224 to 238 the judge-rapporteur shall make all necessary preparations for the oral hearing. Subject always to the provisions of Rule 222 [1] , the judge-rapporteur shall, to the extent appropriate, have the powers and exercise the duties set out in Rules 101 to 110 mutatis mutandis.
[Rules 224 [2] , 225 [3] , 226 [4] , 227 [5] , 228 [6] , 229 [7] , 230 [8] , 231 [9] , 232 [10] , 233 [11] , 234 [12] , 235 [13] , 236 [14] , 237 [15] , 238 [16]]
[Rules 101 [17] , 102 [18] , 103 [19] , 104 [20] , 105 [21] , 106 [22] , 108 [23] ; 109 [24] , 110 [25]]

2. As soon as the judge-rapporteur considers that the appeal is ready for oral hearing he shall summon the parties to the oral hearing. Except for appeals against the orders referred to in Rule 220.1 (c) [26] and 220.2 [27], and subject to any order for e
...
Please login to continue reading.


Registering with the site

You have requested to take part in a forum reserved for registered visitors.

Personal identifiers

Enter your personal information here. You will receive a registration confirmation shortly by email. Such email may have been considered as spam. If you do not find it in your inbox nor in your spam, please send an email to contact@upc-casalonga.eu.

(Your password must contain at least 6 characters.)

Required fields are indicated with a « * »


New visitor ?

Subscribe


[1-
1. Requests, facts, evidence and arguments submitted by the parties under Rules 221, 225, 226, 236 and 238 shall, subject to paragraph 2, constitute the subject-matter of the proceedings before the Court of Appeal. The Court of Appeal shall consult the file of the proceedings before the Court of First Instance.
2. Requests, facts and evidence which have not been submitted by a party during proceedings before the Court of First Instance may be disregarded by the Court of Appeal. When exercising discretion, the Court shall in particular take into account:
(a)whether a party seeking to lodge new submissions is able to justify that the new submissions could not reasonably have been made during proceedings before the Court of First Instance;
(b)the relevance of the new submissions for the decision on the appeal;
(c)the position of the other party regarding the lodging of the new submissions.

[2-
1. A Statement of appeal shall be lodged by the appellant:
(a) within two months of service of a decision referred to in Rule 220.1(a) and (b);
or
(b) within 15 days of service of an order referred to in Rule 220.1(c)
or a decision referred to in Rule 220.2
or 221.3.
2. The Statement of grounds of appeal shall be lodged by the appellant:
(a) within four months of service of a decision referred to in Rule 220.1(a) and (b)
; or
(b) within 15 days of service of an order referred to in Rule 220.1(c)
or a decision referred to in Rule 220.2 or 221.3.
Relation with Agreement: Article 73(1) and (2)

[3-
1. A Statement of appeal shall be lodged by the appellant:
(a) within two months of service of a decision referred to in Rule 220.1(a) and (b);
or
(b) within 15 days of service of an order referred to in Rule 220.1(c)
or a decision referred to in Rule 220.2
or 221.3.
2. The Statement of grounds of appeal shall be lodged by the appellant:
(a) within four months of service of a decision referred to in Rule 220.1(a) and (b)
; or
(b) within 15 days of service of an order referred to in Rule 220.1(c)
or a decision referred to in Rule 220.2 or 221.3.
Relation with Agreement: Article 73(1) and (2)

[4-
The Statement of grounds of appeal shall contain:
(a) an indication of which parts of the decision or order are contested;
(b) the reasons for setting aside the contested decision or order; and
(c) an indication of the facts and evidence on which the appeal is based in accordance with Rule 222.1 and .2

[5-
1. The Statement of appeal and the Statement of grounds of appeal shall be drawn up:
(a) without prejudice to Article 50(3)
of the Agreement, in the language of the proceedings before the Court of First Instance; or
(b) where the parties have agreed in accordance with Article 50(2) of the Agreement, in the language in which the patent was granted. Where the parties have agreed in accordance with Article 50(2) of the Agreement, evidence of the respondent’s agreement shall be lodged by the appellant together with the Statement of appeal.
Relationship with Agreement: Article 50

[6-
The appellant shall pay the fixed fee and, where applicable, the value based fee for the appeal, in accordance with Part 6. Rule 15.2
shall apply mutatis mutandis

[7-
1. The Registry shall, as soon as practicable after the lodging of the Statement of appeal, examine whether the requirements of Rules 224.1, 225, 227 and 228 have been complied with.
2. If the appellant has not complied with the requirements referred to in Rules 225, 227 or 228, the Registry shall invite the appellant to:
(a) correct the deficiencies within 14 days of service of such notification; and
(b) where applicable, pay the fee for the appeal within said 14 days.
3. The Registry shall at the same time inform the appellant that if the appellant fails to correct the deficiencies or to pay the fee within the time stated, a decision by default may be given in accordance with Rule 357.
4. If the appellant has not met the requirements of Rules 225, 227 and 228 and fails to correct the deficiencies or pay the fee the Registry shall inform the President of the Court of Appeal who shall reject the appeal as inadmissible by a decision by default. He may give the appellant an opportunity to be heard beforehand.
5. If the appellant has not met the requirements of Rule 224.1 , the Registry shall inform the President of the Court of Appeal who shall reject the appeal as inadmissible. He may give the appellant an opportunity to be heard beforehand.

[8-
1. If the Statement of appeal complies with the requirements referred to in Rule 229.1, the Registry shall:
(a) record the date of receipt to the Statement of appeal and an action number to the appeal file;
(b) record the appeal file in the register;
(c) inform the appellant of the action number and the date of receipt; and
(d) serve the Statement of appeal on all parties to the proceedings at first instance.
2. The action shall be assigned to a panel according to Rule 345.3 and .8.
3. The panel shall as soon as practicable decide whether to grant any order for expedition pursuant to Rule 225(e) having given the parties an opportunity to be heard.

[9-
The presiding judge of the panel to which the action has been assigned shall designate one legally qualified judge of the panel as judge-rapporteur. The presiding judge may designate himself as the judge-rapporteur. The Registry shall as soon as practicable notify the appellant and respondent of the identity of the judge-rapporteur.

[10-
1. If the language of the proceedings before the Court of Appeal is not the language of the proceedings before the Court of First Instance, the judge-rapporteur may order the appellant to lodge, within a time period to be specified, translations into the language of the proceedings before the Court of Appeal of:
(a) written pleadings and other documents lodged by the parties before the Court of First Instance, as specified by the judge-rapporteur;
(b) decisions or orders of the Court of First Instance.
The judge-rapporteur shall at the same time inform the appellant that if the appellant fails to lodge the translations within the time period specified, a decision by default may be given in accordance with Rule 357.
2. If the appellant fails to lodge the translations under paragraph 1 within the time period specified, the judge-rapporteur shall reject the appeal by a decision by default in accordance with Rule 357.
He may give the appellant an opportunity to be heard beforehand.
3. The appellant may request that documented costs of translations be taken into account when the Court fixes the amount of costs in accordance with Part 1, Chapter 5.
Relation with Agreement: Article 50(2) and (3)

[11-
1. The judge-rapporteur shall examine whether the Statement of grounds of appeal satisfies the requirements of Rule 226.
2. If the Statement of grounds of appeal does not comply with the requirements of Rule 226, the judge-rapporteur shall give the appellant leave to amend the Statement of grounds of appeal within such period as he may decide. If the appellant fails to amend the Statement within such period the judge-rapporteur may reject the appeal as inadmissible. He shall give the appellant an opportunity to be heard beforehand.
Grounds of appeal which are not raised within the period specified for the Statement of grounds of appeal in Rule 224.2
3. Grounds of appeal which are not raised within the period specified for the Statement of grounds of appeal in Rule 224.2 shall not be admissible.

[12-
1. The appellant may challenge a decision to reject the appeal as inadmissible under Rules 224.1 or 233.2 within one month of service of the decision, without providing new grounds of appeal.
2. The action shall be assigned to a panel according to Rule 345.3 and .8.
3. If a decision to reject an appeal as inadmissible is set aside, the appeal shall take its normal course.

[13-
1. Within three months of service of the Statement of grounds of appeal pursuant to Rule 224.2(a), any other party to proceedings before the Court of First Instance (hereinafter "respondent") may lodge a Statement of response, which shall be served on the appellant.
2. Within 15 days of service of grounds of appeal pursuant to Rule 224.2(b)
, any other party to proceedings before the Court of First Instance (hereinafter "respondent") may lodge a Statement of response, which shall be served on the appellant.
3. If the respondent fails to lodge a Statement of response, the Court of Appeal may give a reasoned decision.

[14-
1. The Statement of response shall contain:
(a). the names of the respondent and the respondent’s representative;
(b). postal and electronic addresses for service on the respondent and the names and addresses of the persons authorized to accept service;
(c). the action number of the appeal file; and
(d). a response to the grounds of appeal.
2. The respondent may support the decision of the Court of First Instance on grounds other than those given in the decision.

[15-
1. A party who has not lodged a Statement of appeal within the period referred to in Rule 224.1 may still bring an appeal by way of cross-appeal within the period referred to in Rule 235 if one of the other parties has lodged a Statement of appeal.
2. A Statement of cross-appeal shall be included in the Statement of response. It shall comply with the requirements of Rules 225 and 226. Rules 229, 233 and 234 shall apply mutatis mutandis to the Statement of cross-appeal.
3. A Statement of cross-appeal shall not be admissible in any other way or at any other time.
4. A cross-appeal shall be treated as an appeal as far as the fee for the appeal is concerned. Rule 228.
5. If the Statement of appeal is withdrawn, any Statement of cross-appeal shall be deemed to be withdrawn.

[16-
1. The appellant may, within two months of service of any Statement of cross-appeal under Rules 237, 235.1, lodge a Reply to the Statement of cross-appeal which shall contain a response to the grounds of appeal raised in the Statement of cross-appeal.
2. The appellant may, within 15 days of service of the Statement of cross-appeal under Rules 237 and 235.2, lodge a Reply to the Statement of cross-appeal which shall contain a response to the grounds of appeal raised in the Statement of cross-appeal.
3. Rule 28
shall apply mutatis mutandis.

[17-
1. During the interim procedure, the judge-rapporteur shall make all necessary preparations for the oral hearing. He may in particular, where appropriate, and subject to the mandate of the panel, hold an interim conference with the parties which may be held on more than one occasion and may exercise the powers provided for in Rule 334.
2. The judge-rapporteur shall have the obligation to ensure a fair, orderly and efficient interim procedure.
3. Without prejudice to the principle of proportionality, the judge-rapporteur shall complete the interim procedure within three months of the closure of the written procedure.
Relation with Agreement: Articles 43 and 52(2).

[18-
1. The judge-rapporteur may refer any matter to the panel for decision and the panel may of its own motion review any decision or order of the judge-rapporteur or the conduct of the interim procedure. Any party may request that a decision or order of the judge-rapporteur be referred to the panel for a review pursuant to Rule 333.
2. Pending review, the decision or order of the judge-rapporteur shall be effective.

[19-
1. Whether or not the judge-rapporteur decides to hold an interim conference, he may order the parties, within time periods to be specified, in particular to:
(a) provide further clarification on specific points;
(b) answer specific questions;
(c) produce evidence;
(d) lodge specific documents including each party’s summary of the orders to be sought at the interim conference.
The judge-rapporteur shall at the same time inform the party concerned that if the party fails to comply with the order within the time period specified, a decision by default may be given in accordance with Rule 355.
2. If a party fails to comply with an order of the judge-rapporteur within the time period specified, the judge-rapporteur may give a decision by default pursuant to Rule 355

[20-
The interim conference shall enable the judge-rapporteur to:
(a) identify main issues and determine which relevant facts are in dispute;
(b) where appropriate, clarify the position of the parties as regards those issues and facts;
(c) establish a schedule for the further progress of the proceedings;
(d) explore with the parties the possibilities to settle the dispute or to make use of the facilities of the Centre;
(e) where appropriate, issue orders regarding production of further pleadings, documents, experts (including court experts), experiments, inspections, further written evidence, the matters to be the subject of oral evidence and the scope of questions to be put to the witnesses;
(f) where appropriate, but only in the presence of the parties, hold preparatory discussions with witnesses and experts with a view to properly preparing for the oral hearing;
(g) make any other decision or order as he deems necessary for the preparation of the oral hearing including, after consultation with the presiding judge, an order for a separate hearing of witnesses and experts before the panel;
(h) set a date for any separate hearing pursuant to point (g) of this Rule, confirm the date for the oral hearing and order, where appropriate, after consultation with the presiding judge and the parties that the oral hearing or a separate hearing of witnesses and experts be wholly or partly by video conference in accordance with Rule 112.3;
(i) decide the value of the action in accordance with Rule 370.6;
(j) decide the value of the proceeding for the purpose of applying the scale of ceilings for recoverable costs (Rule 152.3);
(k) order the parties to submit, in advance of the decision at the oral hearing, a preliminary estimate of the legal costs that they will seek to recover.
Relation with Agreement: Article 52(2)

[21-
1. The interim conference should, where practicable, be held by telephone conference or by video conference.
2. On request by a party, subject to paragraph 1 and the approval of the judge-rapporteur, the interim conference may be held in Court. If the interim conference is held in Court, it shall be open to the public unless the Court decides to make it, to the extent necessary, confidential in the interests of one or both parties or third parties or in the general interests of justice or public order.
3. The judge-rapporteur may hold the interim conference in any language agreed by the parties’ representatives.
4. Rule 103 shall apply mutatis mutandis.
5. Following the interim conference, the judge-rapporteur shall issue an order setting out the decisions taken.

[22-
The interim conference shall be audio recorded. The recording shall be made available at the premises of the Court to the parties or their representatives after the hearing.
Relation with Agreement: Articles 44 and 45

[23-
The judge-rapporteur shall summon the parties to the oral hearing which shall take place before the panel on the date(s) set under Rules 28 and/or 41(c) and 104(h). If no date(s) have been set the judge-rapporteur shall set a date for the oral hearing. At least two months’ notice shall be given, unless the parties agree to a shorter time period.

[24-
1. At the latest one month before the oral hearing including any separate hearing of witnesses and experts a party may lodge a Request for simultaneous interpretation which shall contain:
(a) an indication of the language to or from which the party requests simultaneous interpretation during the oral hearing;
(b) the reasons for the Request;
(c) the field of technology concerned;
(d) any other information of relevance for the Request.
2. The judge-rapporteur shall decide whether and to what extent simultaneous interpretation is appropriate and shall instruct the Registry to make all necessary arrangements for simultaneous interpretation. In the event that the judge-rapporteur refuses to order simultaneous interpretation the parties may request arrangements to be made, so far as practically possible, for simultaneous interpretation at their cost.
3. The judge-rapporteur may decide of his own motion to order simultaneous interpretation and shall instruct the Registry and inform the parties accordingly.
4. A party wishing to engage an interpreter at its own expense shall inform the Registry at the latest two weeks before the oral hearing.
5. Costs for simultaneous interpretation are costs of the proceedings to be decided upon under Rule 150 except where a party engages an interpreter at its own expense under paragraph 4; these costs are borne solely by that party.
Relation with Agreement: Article 51(2)

[25-
1. As soon as the judge-rapporteur considers that the state of preparation of the file is adequate, he shall inform the presiding judge and the parties that the interim procedure is closed in view of the oral hearing.
2. Where final dates have been set pursuant to Rules 103 and 104 the interim procedure shall be deemed closed on the last date set.
3. The oral procedure shall start immediately after the interim procedure is closed. The presiding judge shall, in consultation with the judge-rapporteur, take over the management of the action.

[26-
1. An appeal by a party adversely affected may be brought against:
(c) orders referred to in Articles 49(5), 59, 60, 61, 62 or 67 of the Agreement.

[27-
2. Orders other than those referred to in paragraph 1 and Rule 97.5, may be either the subject of an appeal together with the appeal against the decision or may be appealed with the leave of the Court of First Instance within 15 days of service of the Court’s decision to that effect.