Rule 9 – Powers of the Court

1. The Court may, at any stage of the proceedings, of its own motion or on a reasoned request by a party, make a procedural order such as to order a party to take any step, answer any question or provide any clarification or evidence, within time periods to be specified.

2. The Court may disregard any step, fact, evidence or argument which a party has not taken or submitted in accordance with a time limit set by the Court or these Rules.

3. Subject to paragraph 4, on a reasoned request by a party, the Court may:
(a) extend, even retrospectively, a time period referred to in these Rules or imposed by the Court; and
(b) shorten any such time period.

4. The Court shall not extend the time periods referred to in Rules 198.1, 213.1 and 224.1.

Case law

Court of Appeal

IPPT20240403, UPC CoA, Juul Labs v NJOY Netherlands
Appeal and the appellant’s request to set aside the orders of the Court of First Instance to rectify the name of the defendant (“Juul Labs, Inc”) to read “Juul Labs International, Inc.” rejected [Rule 9 RoP]. If the claimant has not correctly named the defendant in the statement initiating the proceedings, the Court may allow the claimant to rectify the error. The request can be granted if the defendant is not unreasonably prejudiced by the incorrect statement of name and its rectification. As a rule, there will be no unreasonable prejudice if, despite the incorrect statement of name, it must have been clear to the defendant and to the Court, based on the circumstances of the case, that the claimant intended the statement for revocation to be directed against the defendant. No decision on costs. Rule 242.1 RoP is to be interpreted to mean that if the decision of the Court of Appeal is not a final order or decision concluding an action, the Court of Appeal, in the case at hand, will not issue an order for costs in respect of the proceedings at first instance and at appeal. However, the outcome of the appeal must be considered when, in the final decision on the action at hand, the Court determines whether and to what extent a party must bear the costs of the other party because it was unsuccessful within the meaning of Article 69 UPCA.

Court of First Instance

IPPT20240409, UPC CFI, LD Munich, Edwards Lifesciences v Meril
Extension of deadline to file Statement of Defence with three weeks rejected (Rule 9(3) RoP). Deadline to submit a written submission should not be extended lightly and should only be granted in circumstances that justify such extension. Defendants have failed to substantiate – other than with a general reference to ‘fair trial’– why the language change one month before the deadline for filing the SoD, in the circumstances of this case makes that the these defendants will not be able to meet the deadline of 26 April, 2024, or are actually hindered in that respect. 

IPPT20240408, UPC CFI, LD Milan, PMA v AWM
No access to written report and any other outcome of the measures to inspect premises and to preserve evidence and revocation of the measures to preserve evidence because applicant did not timely start proceedings on the merits (Article 60(9) UPCA, Rule 198 RoP, Rule 9(4) RoP). 

IPPT20240313, UPC CFI, LD Paris, Laser Components v Seoul Viosys
Request for extension of time limit for filing Statement of defense by Laser Components because of coordination of a joint defence with intervening party Photon Wave dismissed (Rule 9(3) RoP, Rule 316A RoP). The plaintiff must not suffer from the procedural choices made by the defendant who has decided to call the intervener into question. The parties before the Unified Patent Court are aware that the time limits are strictly limited and must be diligent in their approaches so that the Court's operation is both fair and efficient, in accordance with the principles of the preamble to the Rules of Procedure, in articles 2 and 4. Accordingly, the defendant cannot legitimately rely on the fact that an intervention is in progress; it is being conducted in parallel with the main action and there is no justification for it delaying the proceedings.

IPPT20240227, UPC CFI, CD Munich, Sanofi-Aventis v Amgen
Interim report after interim hearing in relation to combing actions (Rule 9 RoP, Rule 101 RoP). Request for interim conference after interim hearing rejected in view of the opportunity to be heard in relation to its requests and the combining of both actions at the present hearing. Case management instructions in relation to combining the actions in preparation for oral procedure to provide that all parties are “on the same page” where it concerns the grounds for revocation, arguments, facts and evidence. Value of proceedings set at 100 million euro in accordance with agreement between the parties (article 36 UPCA). Reasonable and proportionate costs recoverable up to a ceiling of 2 million euro in accordance with table published by the Administrative Committee (article 69 UPCA). Court and parties must have access to information showing at least a detailed description of the number of hours spent working on this particular case, by whom, what for and at what rate. The same applies to any expenses incurred. The judge-rapporteur informed the parties that the Court will, in principle, respect an agreement between the parties on the amount of costs that is deemed reasonable and proportionate. Use of slides during oral hearing of 4 June 2024 (Rule 9 RoP, Rule 112 RoP). Use of reasonable number of slides as demonstratives, which may not introduce any new facts or substance to the case, permitted; to be submitted by all parties by 7 May 2024 at the latest. Both parties are to include with the slides a table indicating exactly where in the pleadings/evidence already on file the contents of the slides can be found.

IPPT20240223, UPC CFI, LD Düsseldorf, 10x Genomics v Curio Bioscience II
Set time limit of 1 March 2024 for replying to defendant’s statement of objection not extended to the conclusion of the confidentiality procedure of Rule 262A RoP (Rule 9(3) RoP). The redacted version of the statement of objection was already available to all representatives of the applicant as well as to the applicant itself on 15 February 2024. Only access to the unredacted version was restricted. The information classified as confidential by the defendant only concerns a very limited part of the statement of objection. Moreover, it is exclusively of a non-technical and purely commercial nature. It is not apparent from the grounds for the request for an extension of the time limit that, and if so for what reasons, the applicant is not in a position to reply to the statement of objection within the time limit set.

IPPT20240221, UPC CFI, LD Düsseldorf, Fujifilm v Kodak
Claimants’ requests for a decision by default against the defendants in the main proceedings pursuant to Rule 355 (1)(a), 277 RoP and for a rejection of the Counterclaims for revocation is rejected. Time limits for filing the Statement of defence and the Counterclaim for revocation extended to 7 February 2024, as it was not possible to upload the Counterclaim for revocation on 6 February 2024 for internal technical reasons (Rule 9(3) RoP, Rule 25(1) RoP). Although the Statement of defence shall include a Counterclaim for revocation, the parties shall make use of the official forms available online (Rule 4(1) RoP). In practice, this means that the Counterclaim for revocation must also be filed in the workflow provided for this purpose by the CMS. Only when this requirement has been met is the Counterclaim for revocation properly filed. Where the defendant has filed a Statement of defence in due time in accordance with the requirements of Rule 25.1 RoP, the time limit for filing the Counterclaim for revocation in the dedicated workflow of the CMS may be extended retrospectively upon request (Rule 9.3 (a) RoP) and subject to the following conditions: Firstly, the defendant must have already made a first attempt to file the Counterclaim for revocation in due time in the workflow provided for this purpose before the expiry of the time limit. Secondly, the defendant must have uploaded the Counterclaim for revocation to the correct workflow without culpable delay after the expiry of the deadline.

IPPT20240220, UPC CFI, CD Paris, Roche Diabetes Care v Tandem Diabetes Care
No extension of deadline (Rule 9(3) RoP): no objective impossibility to meet deadline. No allegation, nor let alone evidence, of a difficulty in arranging a proper defence, rather the possibility that the submissions of pleadings in due time may be useless in case the Court will allow the preliminary objection. The power to extend the time limit should only be used with caution and only in justified exceptional cases (see UPC CFI 412/2023 CD Paris, order of 9 February 2024). It follows that the Court may extend a deadline set by the Rules of Procedures only in case a party alleges and gives evidence that it will not be able or was not able to meet it because of a fact that makes the submission of a document or the arrangement of an adequate content of a pleading in the due time objectively impossible or very difficult. 

IPPT20240212, UPC CFI, LD Paris, Dexcom v Abbott

IPPT20240212, UPC CFI, LD Paris, Abbott v Dexcom
Extension and alignment of deadline for filling Statement of Defence by multiple defendants in accordance with agreement between the parties at case management hearing, which is considered reasonable by the judge-rapporteur (Rule 9(3) RoP, Rule 23 RoP, Rule 334 RoP).

IPPT20240209, UPC CFI, CD Paris, ITCiCo Spain v Bayerische Motoren Werke
Request to extend time limit for filing Defence to revocation rejected (Rule 9 RoP, RoP 49 RoP). An impossibility or an extreme difficulty to meet the deadline which is attributable to the party requesting the extension of the deadline or its representative does not come into consideration, as it may not be deemed as objective. Principle of fair trial obliges a party to submit a request for time extension as soon as it appears clear that the meeting of the deadline will not be possible. Difficulties with smart card verification device and illness of patent attorney devoid of evidence. A party's representative waiting for the smart card verification device after the service of the statement of claim (and the reception of the information concerning the lodging of the revocation action) is expected to seek a solution in an appropriate time and act accordingly (for example, by submitting requests to the Court or the Registry)

IPPT20240127, UPC CFI, LD Hamburg, 10x Genomics v Vizgen
Synchronisation of time limits for Reply to Statement of defence in infringement action and for filing Statement of defence in revocation action: start to run on 15 January 2024 (Rule 9 RoP). Plaintiffs were only able to discuss the statement of defence with the confirmed group of recipients without restriction at all from 15 January 2024 onwards due to the defendant's request for confidentiality. This information is undoubtedly an integral part of the statement of defence.

IPPT20240122, UPC CFI, CD Paris, NJOY Netherlands v VMR Products

The judge-rapporteur is not to inform a party (even upon request) of the exact deadline provided for by statutory rules before its expires, nor to give the interpretation of statutory provisions or the assessment of facts during the course of a proceedings where it may be helpful to one of the parties. (Rule 9 RoP). Would lead to an advisory role, which is contrary to the principles of judicial impartiality (Article 17 UPCA) and of the right of a fair trial (Article 6 ECHR and Article 47 EU Charter of Fundamental Rights). All written pleadings, including the defence to revocation, are deemed to be served on the day when the relevant electronic message was sent (Rule 278(4) RoP; Rule 271(6)(a) RoP)

IPPT20240120, UPC CFI, LD Düsseldorf, Seoul Viosys v expert e-Commerce
Extending time periods  (Rule 9(3)(a) RoP) only to be used with caution and only justified in exceptional cases (see: UPC_CFI_475/2023 (LK Düsseldorf), Anordnung v. 19. Januar 2024). No exceptional case: that access to the CMS was not possible "over a longer period of time" is not a sufficient reason for an extension of the deadline for filing the statement of defence and the counterclaim as an exception. The statement of claim, including the annexes, was served on the defendants in paper form. Neither submitted nor apparent that the defendants were unable to upload their pleadings to the CMS in due time due to technical reasons.

IPPT20240119, UPC CFI, LD Düsseldorf, Dolby v HP
Extending time periods (Rule 9(3)(a) RoP) only to be used with caution and only justified in exceptional cases. Exceptional case: action directed against 15 defendants of which, to date, only three have been served; currently not possible to predict how much time serving others will take; willingness for defendants' representatives to be appointed for all defendants will considerably simplify the conduct of the proceedings and thus also in the interests of the plaintiff; slight extension of the opposition and defence periods requested [..] leads  to a uniform time limit and therefore appears appropriate; assurance by  defendants' representatives of agreement with extension of the time limit.

IPPT20240117, UPC CFI, LD The Hague, Plant-e v Arkyne
Ex officio order judge-rapporteur to extend deadline to file Defence in the Counterclaim for revocation and to reunite the claim and counterclaim workflows (Rule 9(3 RoP, Rule 311(1) RoP, Rule 334(a) RoP). Defence to the counterclaim for revocation not filed together with Reply to defence in the claim as required by Rule 29(a) RoP. The apparent misunderstanding of the relevant deadline [for Statement of defence to counterclaim for revocation] by Plant-e Knowledge will in this situation not be held against her; the consequences would be disproportionate.

IPIPPT20240103, UPC CFI, LD Munich, Philips IP v Edrich

IPPT20240103, UPC CFI, LD Munich, Philips v Edrich
Extension of time period for lodging Reply extended by one week until 15 January 2024 (Rule 9 RoP). The written reasons for the nullity judgment of the Bundespatentgericht of August 2023 were only served on 22 December 2023 and a precise analysis of the reasons for the judgment was made difficult by the Christmas holidays. Furthermore, the shortening of the nullity rejoinder period by one week offered by the plaintiff will not result in any overall delay in the proceedings.

IPPT20240102, UPC CFI, LD Munich, Amgen v Sanofi-Aventis
Deadline for commenting on provisional dates for interim conference extended as the overall handling of the case will not be affected at all or not much by granting the extension. Rule 9 RoP workflow is to be used for request to extend time period.  Counsel for defendants used the main workflow for this request. He should have used a Rule 9 workflow (Rule 4.1 RoP). Consequence is that defendants can no longer comment on the provisional dates within the main workflow. The judge-rapporteur has therefore started this workflow.

IPPT20231218, UPC CoA, OPPO v Panasonic 

IPPT20231219, UPC CoA, OPPO v Panasonic

IPPT20231220, UPC CoA, OPPO v Panasonic
Requests by Appellant for shortening the time period for filing the Statement of response by Respondent in appeal rejected; disproportionate to the time the Appellant has itself taken for the Statement of appeal (Rule 9 RoP, Rule 224 RoP). Request for expedition of appeal by Appellant after having used full 15 days for Statement of appeal, which would give Respondent only 4 working days to respond, and would require the Court of Appeal to decide the case on the very same day, without the opportunity to hear the parties, (i) insufficiently takes into account the interests of the Respondent to be given sufficient time to properly prepare its Statement of response and (ii) would be contrary to the principles of proportionality, fairness and equity.

IPPT20231205, UPC CFI, LD Hamburg, Avago v Tesla 

Procedural order (Rule 9 RoP, Rule 262A RoP). The start of the plaintiff’s time period for lodging the Defence to the counterclaim for revocation is set for 8 November 2023 in line with the time limit for the Reply to the Statement of defence in the infringement action. This request had to be complied with, as such concurrence not only appears to be procedurally economical, but is also necessary with regard to the right to be heard, since the content of the statement of defence, including the protected information contained therein, is significant for the drafting of the Defence to the revocation action.  

IPPT20231204, UPC CFI, LD Munich, Panasonic v Xiaomi

Final order based on agreement by the parties regarding Service of Statement of claim by alternative method deemed accepted (Rule 275 RoP); Extension of time to file Statement of defence granted (Rule 9 RoP). The agreement between the parties on the […] procedural issues is procedurally efficient and reasonable and should therefore be implemented.

IPPT20231127, UPC CFI, LD Munich, Panasonic v Xiaomi

Preliminary order : Service of Statement of claim by alternative method (Rule 275 RoP); Extension of time to file Statement of defence (Rule 9 RoP). The Court is of the opinion that the most efficient and economically sensible course of action in the present case would be for the present counsel for Defendants 3,4,5,6,9,10 to accept service for Defendants 1, 2, 7, 8 on Defendant 3 in the context of the motion under (Rule 275.2 RoP). As a concession, the time limit for responding to the action could - subject to a statement by the plaintiff - be set uniformly until 31 January 2024. The application for an extension of time for defendants 3,4,5,6,9,10 would then be interpreted as also including an application for an extension of time for defendants 1, 2, 7,8.

IPPT20230828, UPC CFI, LD Helsinki, AIM Sport Vision v Supponor
Procedural order in main proceedings and provisional measures proceedings concerning issues to be addressed in written submissions, invitation to an oral hearing in front of the whole panel, including a technically qualified judge, and instructions regarding oral hearing.

IPPT20230823, UPC CFI, LD Munich, Edwards Lifesciences v Meril

Rule 9 RoP: An intended harmonisation of the time-limit regime as such does not constitute a reason for an extension of the time-limit that runs for the opponent who was successfully served at an earlier point in time. Rather, harmonisation can also be achieved by shortening the time limit for the opponent who was only served at a later point in time. Working with the new procedural law and the CMS poses considerable challenges for all parties involved. Therefore, in the initial period, a practicable handling of the challenges that arise is required. The judge-rapporteur therefore exercises the discretion granted by the Rules of Procedure to grant the request by way of exception. Moreover, the defendant (= applicant) has agreed to the request for an extension of time.

IPPT20230822, UPC CFI, LD Hamburg, Avago v Tesla

Rule 9 RoP: No convincing reasons for extending three months time period for lodging statement of defence. The time limit for filing oppositions under Rule 23 of the Rules of Procedure is already calculated in such a way that, for international patent disputes falling within the jurisdiction of the Unified Patent Court, it allows for a clarification of the facts and an internal coordination of the proceedings and internal coordination, even during holiday periods. Moreover, in the present case, the time limit for filing the statement of opposition already amounts to three months and six days for the first defendant and three months and eight days for the second defendant without the requested extension of the time limit due to the calculation of the time limit pursuant to Rule 271.6(b) in conjunction with 271.4(a) of the Rules of Procedure. Reference is made to the calculation of the time limit communicated by the judge-rapporteur in his order of 10 August 2023. The fact that certain central contact persons at the defendants and the suppliers could not be reached during the vast majority of the deadline period due to holidays is neither apparent nor asserted by the defendants.

IPPT20230810, UPC CFI, LD Munich, Edwards Lifesciences v Meril

The prevention of a divergence of the deadlines for lodging a preliminary objection (Rule 19) is not necessary per se. [...]. However, it should be noted that working with the new procedural law and case management system (CMS) poses significant challenges to all parties involved. Therefore, a practicable handling of the challenges that arise is required in the initial period. The Rapporteur exercises the discretion granted by the Rules of Procedure to grant the application by way of exception.