The UPC has released statistics confirming the case load of the court as at 30 April 2024, and, for the first time, English has become the predominant language for first instance proceedings, accounting for 48% of cases. This marks a significant change, as previously, German was the dominant language, but has since seen a decline from 47% to 45% of first instance proceedings. Other languages include French (3%), Italian (3%) and Dutch (1%). This trend looks like it is set to continue, especially as all current judges at the UPC speak English.
In the recent case of Curio Biosciences v 10x Genomics (reported on here), a request was made to change the language of proceedings from German to English. The patent in question had been written in English. Initially, the change was refused at first instance, but this decision was overturned on appeal, despite the President of the Court of First Instance having a margin of discretion on this.
The Court of Appeal considered several factors when deciding on the language of proceedings:
• Language of Evidence: the language in which evidence (including prior art) is presented plays a crucial role.
• Field of Technology: the language most commonly used in the relevant technology field is relevant.
• Party Circumstances: considerations related to parties, including nationality and domicile. Particular emphasis was placed on the fact that a party must be able to fully understand submissions, and any lack of proficiency in the language of proceedings would not be compensated by the fact that its representative may be so.
• Party Size: if one party is a small company with limited resources, this impacts the balance.
• Impact on Proceedings: how the change in language affects proceedings, especially in terms of any potential delay.
• Defendant’s Position: the position of the defendant is a decisive if the balance of interests is equal.
• Representative: whether a representative has particular language skills is, in general, of no significance because they typically work in a team in a multi-disciplinary and multi-lingual environment.
• Judges: the nationality of the judges hearing a case is not usually relevant.
According to Article 49(6) UPC Agreement (UPCA), the language of proceedings at the Central Division should be the language in which the patent was granted. The Court of Appeal emphasised that conducting proceedings in the language of the patent would not be unfair unless there were extenuating circumstances.
The Order can be found here.
Given that the majority of the over 25,000 granted unitary patents are written in English, the shift towards English as the primary language of proceedings could be set to continue.
