Rule 12 – Exchange of written pleadings (infringement action)

1. The written procedure shall consist of:

(a) the lodging of a Statement of claim (by the claimant) [Rule 13];

(b) the lodging of a Statement of defence (by the defendant) [Rules 23 and 24]; and, optionally

(c) the lodging of a Reply to the Statement of defence (by the claimant) [Rule 29(b)]; and

(d) the lodging of a Rejoinder to the Reply (by the defendant) [Rule 29(c)]. 2. The Statement of defence may include a Counterclaim for revocation [Rule 25.1].

3. If a Counterclaim for revocation is lodged:

(a) the claimant and any proprietor who becomes a party pursuant to Rule 25.2 (hereinafter in this Rule 12 and Rules 29 to 32, “the proprietor”) shall lodge a Defence to the Counterclaim for revocation [Rule 29(a)], which may include an Application to amend the patent by the proprietor [Rule 30];

(b) the defendant may lodge a Reply to the Defence to the Counterclaim [Rule 29(d)]; and

(c) the claimant and the proprietor may lodge a Rejoinder to the Reply to the Defence to the Counterclaim [Rule 29(e)].

4. If an Application to amend the patent is lodged by the proprietor, the defendant shall lodge a Defence to the Application to amend the patent in the Reply to the Defence to the Counterclaim, the proprietor may lodge a Reply to the Defence to the Application to amend and the defendant may lodge a Rejoinder to such Reply [Rule 32].

5. The judge-rapporteur may allow the exchange of further written pleadings, within time periods to be specified [Rule 36].

Case Law

Court of First Instance

IPPT20240927, UPC CFI, LD Düsseldorf, Ortovox v Mammut
No further written pleadings following appeal (R. 9 RoP, R. 12 RoP). The order of the Court of Appeal dated 25 September 2024 provides no reason for the admission of further written pleadings in the main proceedings.

IPPT20240821, UPC CFI, LD Paris, HP v Lama France
It is clear from R 12 RoP that the Rules of Procedure have divided the written procedure into several successive streams. These flows, accompanied by strict deadlines, have been designed to ensure the most efficient and economical procedure possible before the UPC, in accordance with point 4 of the preamble. Full repetition of arguments does not help the court make better decisions. Full repetition of the arguments is superfluous, tends to increase the number of pages of the pleadings (to date more than 1,760 pages […]) which does not help the judges to give a decision of the highest quality as provided for in point 6 of the RoP preamble.

IPPT20240124, UPC CFI, CD Munich, Sanofi-Aventis v Amgen
No automatic right for Claimant to reply to Rejoinder by Defendant (Rule 12 RoP, Rule 43 RoP). Generally, fixed framework of written submissions and front-loaded character of the UPC proceedings designed to conduct UPC proceedings in an efficient, proportionate, fair and equitable way. Request allowable: a bona fide attempt to respond concisely to new points made for the first time in the last written submission. No right Defendant to react to reply: right to be heard does not entail that there should be yet another exchange between the parties. Defendant has the right to be heard at the oral hearing.