UPC CFI LD Munich, 18 January 2024: Leave to amend action with additional patent after limitation proceedings (article 105a EPC)
25-02-2024 Print this page
Leave to amend the action to include claims of additional patent after the conclusion of limitation proceedings related thereto as granted by judge-rapporteur confirmed by the panel (Rule 263 RoP, Article 105a EPC).
Rule 263 RoP leave to change claim or amend case is a procedural order to be made by the judge-rapporteur and subject to review by the panel (Rule 333 RoP and subsequent appeal (Rule 220 RoP). This procedure is intended to give the ruling body the opportunity to remedy the objection itself and thus avoid a superfluous appeal.
Assessment of the admissibility of the extension of the action is based solely on Rule 263 RoP and not on national law.
The plaintiff could not reasonably be expected to assert the limited claims earlier before the conclusion of the limitation proceedings, also due to the risk of a further counterclaim for a declaration of invalidity of the second patent. In the context of the present proceedings or in the context of separate proceedings, the defendants must be granted the same time limits for their defence that would have been granted if they had filed a separate action, but no longer.
