UPC CFI LD Düsseldorf, 24 January 2024: request to assign technically qualified judge for provisional measures proceedings because it is sensible10-02-2024 Print this page
Sensible and advisable to also involve technically qualified judge already in the present proceedings because the respondents deal extensively with the legal status of the patent in dispute in support of their request for examination.
The ordering of provisional measures can only be considered if the legal validity of the patent in dispute is sufficiently secured, Art. 62 (4) UPCA in conjunction with R. 211.2 RP. It is therefore necessary for the panel to obtain a sufficient picture of the legal validity on the basis of the parties' submissions and, in particular, to examine whether any objections raised against the validity of the patent in suit are likely to give rise to reasonable doubts as to the validity of the patent in suit (UPC_CFI_452/2023 (LD Düsseldorf), order of 11 December 2023 [IPPT20231211]).
Although the involvement of a technically qualified judge ex officio is only mentioned in the Rules of Procedure in R. 34 RP and thus in the provisions on the main proceedings, Art. 8(5) sentence 2 UPCA grants the panel in general and thus also in summary proceedings the right, after hearing the parties, to involve such a judge on its own initiative if it considers this appropriate (see also UPC_CFI_2/2023 (LD Munich [IPPT20230919]); UPC_CFI_214/2023 (LD Helsinki) [IPPT20231020]).
This is already the case in the present case because the respondents deal extensively with the legal status of the patent in dispute in support of their request for examination. If, in the main proceedings following the summary proceedings, the local division decides to also rule on a (potential) revocation counterclaim, it is mandatory to add a technically qualified judge to the bench (Art. 33(1)(a) UPCA). It therefore seems sensible and advisable to involve this judge in the summary proceedings as well.