English now the dominant language in the UPC – and guiding principles from the Court of Appeal for applications to change the language of proceedings

The rise of English language proceedings in the UPC

As readers may recall from a previous post on UPC statistics, the UPC now publishes a monthly report detailing statistics of its case load since commencing operations in June 2023. Yesterday, the UPC published the most recent update, confirming that English is now, for the first time, the predominant language in UPC proceedings. 48% of proceedings at the UPC are now in English (with 45% in German).

This has been expected for some time now, following an influx of new cases being filed in English across the Local and Regional Divisions and a string of successful applications under Article 49(5) of the UPC Agreement (UPCA) and Rule 323 Rules of Procedure (RoP) to change the language of ongoing proceedings to English. 

Guiding principles on change of language - the Court of Appeal’s decision in Curio v 10x Genomics

One guiding case on the considerations to be taken into account for applications to change the language of proceedings is Curio v 10x Genomics (UPC_CoA_101/2024). 

Pursuant to Article 49(5) UPCA and R. 323 RoP, at the request of one of the parties and after having heard the other parties and the competent panel, the President of the Court of First Instance may “on grounds of fairness and taking into account all relevant circumstances, including the position of parties, in particular the position of the defendant” decide to use the language in which the patent was granted as the language of proceedings. 

On 26 February 2024, the Düsseldorf Local Division rejected Curio’s application to change the language of proceedings from German to English under Article 49(5) UPCA and R. 323 RoP. However, the Court of Appeal issued a decision on 17 April 2024 overturning that decision, ruling that the language of the patent (English) should be used as the language of the proceedings. The Court of Appeal concluded that the Düsseldorf Local Division’s decision was based on an incorrect analysis of fairness and the relevant circumstances under Article 49(5) UPCA and stated that the relevant circumstances should primarily be related to the specific case and the positions of the parties. These relevant circumstances include: 

i) the language mostly used in the field of technology (in this case English was the dominant language in the field); 

ii) the language of the evidence and prior art relied on (in this case most of the documents relied on were in English);

iii) the nationality or domicile of the parties (in this case both were US companies); 

iv) the relative sizes of each party and availability of resources (in this case, there was a heavier burden placed on Curio as a result of the language of proceedings being different to their company language as they are a smaller company); and

v) the impact/delay a change of language will have on the proceedings,  especially in relation to the urgency of the case.

The Court of Appeal stated that a party must be able to understand what is submitted by a representative on its behalf and what is submitted by the other party fully. The fact that a party’s representative is proficient in the language of the proceedings is in general of no significance and does not compensate for the language of proceedings being different to the language of a party.

Furthermore, the Court of Appeal noted that the process of translating statements and evidence takes time and incurs additional costs.  Although a change of language of proceedings may lead to a delay in proceedings (which is disadvantageous to a claimant), the Court of Appeal acknowledged that it can be extra burdensome for a defendant to defend itself in a language other than its own language given the strict time limits, particularly in summary proceedings such as those for provisional measures. 

The Court of Appeal noted that 10x Genomics ought to have been aware that the choice of language when filing the patent would likely result in proceedings before both the EPO and at least the Central Division of the UPC being carried out in the language of the patent (Article 49(6) UPCA states that “the language of proceedings at the central division shall be the language in which the patent concerned was granted”). Given that the Claimant has a choice as to the language of the patent, with the possibility of future legal proceedings in that language, absent specific relevant circumstances using the language of the patent as the language of the proceedings cannot be considered to be unfair in respect of the claimant. The Court of Appeal therefore emphasised that when applying Article 49(5) UPCA, if the outcome of balancing the parties’ interests is equal, the position of the defendant should be the decisive factor. 

The Court of Appeal also rejected 10x Genomics’ argument that no change of language can be ordered after the last oral hearing at the Court of First Instance. 

Finally, the Court of Appeal confirmed that the nationality of the panel of judges is irrelevant and the perceived risk that some judges may overlook nuances in the submissions if the language of proceedings was changed to English could be mitigated by arranging for German translations.

Key takeaways

The UPC’s latest case load report shows that the shift towards proceedings being conducted in English continues to gather pace. The Court of Appeal’s decision in Curio v 10x Genomics helps to clarify the interpretation of Article 49(5) UPCA and R. 323 RoP on the change of language of UPC proceedings and indicates that, absent specific circumstances, a request by a defendant to change the language of UPC proceedings to the language of the patent is likely to be successful. Given that the majority of European patents (>70%) are written in English, it is likely that we will see a rise in successful requests for a change of language to English. In conjunction with the higher number of cases being filed in English, this suggests a continued evolution of the UPC to an English-language court.

Overall, the further clarity brought by the Court of Appeal in relation to the relevant considerations for a change of language and the continued trend towards English language proceedings is likely to be welcomed by many potential users of the UPC, in particular defendants who use English as a working language and 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 also opens up a larger pool of judges available to hear each case. 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.