Article 48

Representation

1.   Parties shall be represented by lawyers authorised to practise before a court of a Contracting Member State.

2.   Parties may alternatively be represented by European Patent Attorneys who are entitled to act as professional representatives before the European Patent Office pursuant to Article 134 of the EPC and who have appropriate qualifications such as a European Patent Litigation Certificate.

3.   The requirements for qualifications pursuant to paragraph 2 shall be established by the Administrative Committee. A list of European Patent Attorneys entitled to represent parties before the Court shall be kept by the Registrar.

4.   Representatives of the parties may be assisted by patent attorneys, who shall be allowed to speak at hearings of the Court in accordance with the Rules of Procedure.

5.   Representatives of the parties shall enjoy the rights and immunities necessary for the independent exercise of their duties, including the privilege from disclosure in proceedings before the Court in respect of communications between a representative and the party or any other person, under the conditions laid down in the Rules of Procedure, unless such privilege is expressly waived by the party concerned.

6.   Representatives of the parties shall be obliged not to misrepresent cases or facts before the Court either knowingly or with good reasons to know.

7.   Representation in accordance with paragraphs 1 and 2 of this Article shall not be required in proceedings under Article 32(1)(i).

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. 

IPPT20240918, UPC CoA, Volkswagen v NST

No evidence of disputed valid power of attorney of a UPC representative required in the absence of any substantiated reasons why the actual existence thereof should be called into question (Article 48 UPCA, Rule 285 RoP). 

IPPT20240208, UPC CoA, Ocado v Autostore
Public access to register requires representation (Rule 8 RoP, Rule 262 RoP, Article 47 UPCA, Article 48 UPCA). ‘Parties’ requiring representation pursuant to Rule 8(1) RoP encompasses also (i) a third party affected by an order or decision such as a third party under Rule 190 RoP and (ii) a member of the public under Rule 262.1(b) RoP. Opt-out applicants are expressly exempted in Rule 5(4) RoP..Members of the public requesting access to the register pursuant to Rule 262 RoP are in an adversarial situation where representation is called for.

Court of First Instance

IPPT20240916, UPC CFI, CD Paris, Microsoft v Suinno - II
Not considered independent for purpose of a valid representation (Article 48(5) UPCA, R. 333 RoP.) It is undebated that […] is the respondent’s managing director and main shareholder and that because of that he enjoys extensive administrative and financial powers within the body he represents. 

IPPT20240710, UPC CFI, LD Mannheim, Panasonic v Xiaomi
Confidentiality club rules (Rule 262A RoP, Article 48 UPCA). In the present case, the extension of access to the information in need of protection to three employees of the defendant is necessary, but also sufficient. Access to the information in need of protection in proceedings before the UPC is to be granted exclusively to authorised representatives pursuant to Art 48 UPCA who are authorised to represent the parties in the specific proceedings. 

IPPT20240709, UPC CFI, LD Mannheim, Panasonic v Orope
Confidentiality and confidentiality club rules (Rule 262A RoP). Disclosure limited to authorized representatives (article 48 UPCA) in proceedings before UPC Local Divisions in Mannheim and Munich. 

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. .

IPPT20240508, UPC CFI, LD Munich, Volkswagen et al. v NST
Valid withdrawal of opt-out on behalf of NST by a representative included in the official list of patent attorneys kept by the Registrar pursuant to Art. 48.3 UPCA who was not required to justify with powers of attorney at the time of filing the application on behalf of NST (Rule 5.3(b)(i) RoP, Article 83.3 UPCA).