Rule 290 – Powers of the Court as regards representatives

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1. As regards representatives who appear before it, the Court shall have the powers normally accorded to courts of law, under the conditions laid down in Rule 291.

2. Representatives who appear before the Court shall strictly comply with any code of conduct adopted for such representatives by the Administrative Committee.

 

Case Law:

 

Court of Appeal

 

IPPT20241015, UPC CoA, Microsoft v Suinno
“Action manifestly bound to fail” (R. 361 RoP, R. 220.3 RoP) must be reserved for clear-cut cases. It should not result in a full exchange of arguments and evidence, as is clear from the use of the words ‘manifestly inadmissible’, and should not require further in-depth analysis, as rightly pointed out in the impugned order. Microsoft has failed to demonstrate that a review of the impugned order on the requirement set under R. 361 RoP is necessary to ensure a consistent application and interpretation of the RoP or any other objective of the discretionary review procedure. Microsoft’s position that the impugned order is incorrect and does not provide a correct interpretation of Art 48(5) UPCA, R. 8.1 and R. 290.2 RoP, and Art. 2.4.1 of the Code of Conduct for Representatives who appear before the Unified Patent Court, is not sufficient for the Court to grant Microsoft’s application, in particular as the issue of independence of a UPC representative is also the subject matter of a R. 220.2 RoP appeal currently pending, during which both Microsoft and Suinno have the opportunity to address it thoroughly. 

 

Court of First Instance

 

IPPT20240702, UPC CFI, CD Paris, Microsoft v Suinno
Request rejected to declare the infringement action manifestly inadmissible (Rule 361 RoP) because (a) the claimant was not duly represented according to Article 48 of the Unified Patent Court Agreement (‘UPCA’) and Rule 8 (1) ‘RoP’ or (b) the content of the statement of claim was insufficient, as it lacked the requirements provided for by Rule 13 (1) (k) ‘RoP’. On due representation (Article 48 UPCA, Rule 8 (1) RoP, Rule 290(2) RoP): The mere fact that […] also carries out active administrative tasks on behalf of the represented party and that he may be directly interested in the outcome of the case is not decisive in order to consider that the representative is not independent for the purposes of interest here. Possible violation of the obligation of independence can only be asserted by the represented party, not by the counterparty. 

 

IPPT20240626, UPC CFI, CD Paris, Suinno v Microsoft
Unfounded objection that representative is not an independent counsellor (Rule 290(2) RoP). The mere fact that […] also carries out active administrative tasks on behalf of the represented party and that he may be directly interested in the outcome of the case is not decisive in order to consider that the representative is not independent for the purposes of interest here. Possible violation of the obligation of independence can only be asserted by the represented party, not by the counterparty.