Rule 194 – Examination of the Application for preserving evidence

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1. The Court shall have the discretion - including where the Application is made pursuant to Rule 192.3 - to:

(a) inform the defendant about the Application and invite him to lodge, within a time period to be specified, an Objection to the Application for preserving evidence which shall contain:

(i) the reasons why the Application shall fail;

(ii) the facts and evidence relied on, in particular any challenge to the facts and evidence relied on by the applicant;

(iii) where main proceedings on the merits of the case have not yet been started before the Court, the reasons why the action which will be started before the Court shall fail and an indication of the facts and evidence relied on in support;

(b) summon the parties to an oral hearing;

(c) summon the applicant to an oral hearing without the presence of the defendant;

(d) decide the Application without having heard the defendant.

2. In exercising its discretion, the Court shall take into account: (a) the urgency of the action; (b) whether the reasons for not hearing the defendant [Rules 192.3 and 197] appear well-founded; (c) the probability that evidence may be destroyed or otherwise cease to be available [Rule 197].

3. The presiding judge may decide that he or the judge-rapporteur or other single judge or the standing judge may decide on the Application.

4. In cases of extreme urgency the standing judge appointed in accordance with Rule 345.5 may decide immediately on an Application to preserve evidence and the procedure to be followed on the Application.

5. If the Court decides to inform the defendant about the Application the Court will first give the applicant the possibility to withdraw the Application. In the event of such withdrawal the applicant may request that the Court shall order that the Application and its contents shall remain confidential.

6. If the patent the subject of the Application is also the subject of a Protective letter pursuant to Rule 207 the applicant may withdraw the Application pursuant to paragraph 5.

 

Case Law:

 

IPPT20230613, UPC CFI, LD Milan, Oerlikon v Himson
No extreme urgency requiring standing judge to decide on application to preserve evidence (Rule 194(4) RoP, Rule 345 RoP). The claimant argues that the order for preserving evidence is extremely urgent due to the end of the fair in Milan, which will end on the 14th of June. The application has been lodged on the 12th afternoon. At this stage, it is still possible for the presiding judge in the local division of Milan to make an urgent decision before the end of the fair. 

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