Short Summary
This is a procedural order from the Court of Appeal of the Unified Patent Court concerning EP 2 263 098. The Apple entities appealed an order of the President of the Court of First Instance (Local Division Düsseldorf) rejecting their application to change the language of proceedings. The Court of Appeal rejected the Appellants' further submission filed on August 15, 2024, because the Rule 36 application seeking leave to file additional pleadings was submitted after the interim proceedings had already been closed on August 13, 2024.
Detailed Summary
This procedural order (Verfahrensanordnung) was issued by the Court of Appeal of the Unified Patent Court on August 21, 2024, in case UPC_CoA_354/2024, by Presiding Judge and Rapporteur Rian Kalden.
The parties are: the Appellants (and Defendants in the first instance proceedings before the Court of First Instance) are Apple Retail Germany B.V. & Co. KG (Munich, Germany), Apple Distribution International Ltd. (Cork, Ireland), Apple GmbH (Munich, Germany), Apple Retail France EURL (Paris, France), and Apple Inc. (Cupertino, USA), all represented by Prof. Dr. Tilman Müller-Stoy of Bardehle Pagenberg. The Respondent (and Claimant in the first instance) is Ona Patents SL (Barcelona, Spain), represented by Dr. Christof Augenstein of Kather Augenstein. The patent in dispute is EP 2 263 098, and the language of proceedings is German.
Background: On June 18, 2024, the President of the Court of First Instance (Local Division Düsseldorf) rejected the application to change the language of proceedings to the language in which the patent was granted. The Apple entities filed an appeal against this order on June 29, 2024. Ona Patents filed its response to the appeal on July 29, 2024, after the deadline for the response had been extended to that date by order of July 25, 2024 (App_42156/24), with the consent of the Appellants.
On August 15, 2024, the Appellants filed a Rule 9 application together with a reply to the appeal response (App_47290/2024). On August 20, 2024, the Respondent filed a Rule 36 application (App_47803/2024) requesting that the reply filed on August 15, 2024 not be considered, or alternatively, that the Respondent be granted an additional deadline until September 6, 2024 to respond to the Appellants' submission.
The Court's reasoning: On August 13, 2024, the Rapporteur informed the parties that no interim hearing would take place and summoned them to the oral hearing via video conference on August 23, 2024. The parties were also informed of the closure of the interim proceedings, after which the oral proceedings begin immediately (Rule 110.3 RoP).
Under Rule 36 RoP, the Rapporteur may, upon a reasoned request from a party filed before the day on which the Rapporteur wishes to close the written proceedings (Rule 35(a)), allow the exchange of further submissions within a set deadline. For appeal proceedings, Rule 239.2 RoP conclusively determines when the written proceedings are concluded. Once the Rapporteur considers the appeal proceedings ready for an oral hearing, the parties are summoned, and with the summons, the interim proceedings are deemed concluded and the oral proceedings begin. No notification under Rule 35a RoP is provided for in appeal proceedings.
The Court held that a Rule 36 application must therefore be filed before the conclusion of the interim proceedings, and further submissions may only be filed after a Rule 36 application has been made. Since the interim proceedings were closed on August 13, 2024, the Rule 36 application should have been filed before that date. The Appellants failed to do so, as their application was only filed on August 15, 2024. The Respondent's objection was therefore justified.
Order: The Court of Appeal rejected the submission filed in App_47290/2024. The oral hearing was to proceed as scheduled on August 23, 2024.
Practitioner Note
This case demonstrates the evidentiary and procedural standards applied in patent matters before Luxembourg (LU). Understanding the court's reasoning in Apple Retail Germany B.V. & Co. KG and Others vs Ona Patents SL is valuable context for structuring arguments or assessing risk in similar proceedings.
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