Is the UPC evolving into an English-language court?

Since November 2023, companies have filed more UPC actions in English than in German. German remains the dominant language of proceedings (47% as of the last update by the UPC on 29 March 2024), which is perhaps unsurprising given the popularity of the German Local Divisions for infringement proceedings. However, as reported in our previous article covering UPC statistics here, the number of cases adopting English as the language of the proceedings is on the rise. English was the language of proceedings in 45% of cases as of the last update by the UPC. Further updates are covered in previous episodes of our podcast, You, Me & the UPC. 

It is possible that many of the early cases filed in German Local Divisions were prepared in German because, at the time of preparation, English was not yet an officially designated language of these divisions (the German Local Divisions did not confirm that English language proceedings would be acceptable until the UPC start date). This has since changed, and even in German Local Divisions we are seeing an increase in English language cases.  All local divisions have now designated English as an official language for proceedings, and in the Nordic-Baltic Regional Division, English is the only language. 

This growth in English language proceedings also reflects a number of requests to change the language of proceedings to English under Article 49(5) of the UPC Agreement (UPCA). 

Change of language of proceedings to English

As noted above, parties can make an application to change the language of proceedings to the language of the patent as granted without having the consent of the other party under Art. 49(5) UPCA and Rule 323 Rules of Procedure (RoP). It is for the President of the Court of First Instance to make the decision on such an application.  According to Art. 49(5) UPCA, the use of the language in which the patent was granted as the language of the proceedings can be decided “on grounds of fairness and taking into account all relevant circumstances including the positions of parties in particular the position of the defendant”. 

As the majority of European Patents are granted in English (regularly >70%) this procedure is particularly relevant to parties wishing to conduct proceedings in English. Two cases where applicants were successful in changing the language of proceedings to English are summarised below. Notably these applications were made in two different Local Divisions.

Plant-e v Arkyne Technologies (UPC_CFI_239/2023) - 18 October 2023, The Hague Local Division
Plant-e (a Dutch company) had brought an infringement action in Dutch against Arkyne Technologies (a Spanish company) based on a patent granted in English. Arkyne filed an application to change the language of proceedings to English. 

Relevant facts in the submissions by Arkyne included that it was a start-up and incurring considerable translation costs would cause a disproportionate and unnecessary financial burden (contrary to one of the purposes of the UPC to make patent litigation affordable for SMEs), whereas Plant-e was an international company that used English as a working language. Plant-e had argued that translation costs were limited due to efficient tools and pointed out that the entire panel of judges had command of the Dutch language as well as three out of four representatives of Arkyne. However, the application was granted, with the President finding that “being sued before the Court in a language that they do not master is an important inconvenience for the Applicant even if being assisted by Dutch representatives”.

SodaStream v Aarke (UPC_CFI_373/2023) - 16 January 2024, Düsseldorf Local Division
SodaStream (an Israeli company) had brought an infringement action in German against Aarke (a Swedish company) based on an English patent.  Aarke filed an application to change the language of proceedings to English.

Aarke supported its application with submissions that it was a small Swedish company which was only founded in 2013 and launched its first product in December 2016 whilst SodaStream was purchased by giant PepsiCo for $3.2 billion in 2018, and that it would be advantageous to use the original language in which the patent was granted for the legal discussion in the infringement proceedings. SodaStream argued that the protection from which SMEs benefit cannot apply to entities that are active all over Europe (as is the case for Aarke, which sells the allegedly infringing embodiments in more than 30 countries worldwide and offers information and support in the respective official languages of these markets, including German).  

Although German was a foreign language for both parties, the application was granted with the President noting that “[t]he situation of the Defendant requires a particular consideration in the event that a SME is sued before the court […]” and drawing particular attention to the relevant sizes of the parties and imbalance this could cause. The President also rejected the relevance of the native language of judges given that English is an official language of the Düsseldorf Local Division. 
 

Key takeaways from the early cases under Art. 49(5) UPCA

In deciding to change the language of proceedings to English, in each case the President appears to carefully weigh the interests of both parties in accordance with Art. 49(5) UPCA. Particular emphasis seems to be given to smaller parties’ interests, especially when they are individuals, start-ups or SMEs.

Factors of greater relevance according to these decisions are:

• The sizes of the companies involved, including their relative sizes;
• The relative financial burden of translation; and 
• The working language(s) of parties.

Less relevant factors might include a party’s representatives’ native language.

Irrelevant factors include the native languages and nationalities of judges on the panel, with the official languages of the division concerned overriding such factors. 

What next?

The trend towards English language proceedings will be welcomed by many potential users of the UPC, in particular SMEs with a good grasp of English for whom performing translations to and from a different language of proceedings is unnecessarily burdensome. Given the short deadlines within UPC proceedings, removing the need for multiple translations will be beneficial for many parties regardless of their size and resources. Aside from parties' preferences, carrying out proceedings in English opens up a larger pool of judges. This will allow for more diversity in panels and help address the workload of individual judges, which will support the UPC’s overarching aim of expediency. 

In addition, with the Irish UPC referendum scheduled for June 2024, the possible establishment of an Irish Local Division in due course would likely result in a further increase in English language cases. 

We are also seeing instances of simultaneous interpretation being used in hearings at the UPC, allowing oral proceedings to be conducted in two different languages, following a similar approach to the EPO. So far, feedback from parties using this service has been positive. 

On the topic of language, one thing we would like to see improve at the UPC is shorter timescales for publication of decisions and translation of orders into other official languages. This would increase access and transparency in the UPC, which is especially important as the body of case law continues to develop rapidly.