Context: When it makes sense to aggregate multiple pieces of news that ip fray initially reported quickly on LinkedIn accumulate, they may be combined as a single article for easier future reference. The first such situation occurred one week ago with respect to multiple decisions by the Unified Patent Court (UPC) (June 19, 2024 ip fray article). It is recommended to follow the LinkedIn page (you may also click on the bell icon there and select notifications for each post) and to subscribe to email notifications via this website.
What’s new: This article aggregates the content of three LinkedIn posts on UPC decisions that became discoverably yesterday (June 25, 2024):
- In an exceedingly thoughtful order, the President of the Court of First Instance (CFI) denied parallel motions by Apple and Google to switch to English (language of patent) in a case brought by a Spanish licensing firm. The decision provides interesting reasons for why it was both efficient and acceptable to proceed in German. One key factor here was an overlap with parallel proceedings in a German national court.
- The Hague Local Division (LD): translation to a non-UPC language (in that case, Polish) was considered a party’s responsibility. The court normally won’t do it and won’t treat the related expenses as part of the overall costs of the proceedings.
- The Dusseldorf LD authorized service of a complaint on a Turkish defendant at a trade show booth in the Netherlands.
Direct impact & wider ramifications: All three decisions relate to patterns that are going to show up in other cases.
To ensure the ability to provide consistent, rapid and comprehensive coverage of UPC developments is a major part of the reason why ip fray will switch to a subscription model on or before January 1, 2025 (June 23, 2024 ip fray article). While ip fray has already begun exploring sponsorships for certain content categories and sees significant interest in different places, the reporting on certain jurisdictions, among them the UPC, will be a premium service at that stage.
1. CFI president explains why Ona Patents’s lawsuits against Apple and Google proceed in German, despite English being language of patent
The President of the CFI, Florence Butin, has sided with Spain’s Ona Patents and denied motions by defendants Apple and Google to change the language of proceedings. ip fray reported on Ona Patents’s UPC and German actions against Apple and Google two months ago (April 24, 2024 ip fray article).
While
- the patent that Ona Patents (represented by Kather Augenstein’s Dr. Christof Augenstein) is asserting against Apple (counsel: Bardehle Pagenberg’s Professor Tilman Mueller-Stoy) and Google (counsel: Quinn Emanuel’s Dr. Marcus Grosch) in two parallel proceedings before the UPC’s Dusseldorf LD was granted in English,
- Ona Patents’s website is in English and
- the telecommunications industry typically communicates in English,
those factors were still outweighed by those counseling for German as the language of proceedings:
There are parallel infringement actions (as ip fray reported in April) before the Munich I Regional Court, which are obviously in German. There are certain technical overlaps.
The size of those Big Tech defendants and the fact that some of the defendant entities are German companies were also held against Apple and Google.
In Apple’s case, the hiring of German in-house litigation counsel Dr. Sonja Bohusch was considered another factor making it acceptable to conduct the infringement proceedings in German.
Links to original documents: order in Apple case (PDF), order in Google case (PDF).
2. The Hague LD: defendant is responsible for translation to non-UPC language (Polish), no undue hardship
The UPC’s Hague LD says translation to Polish, which is not a UPC language, is not the court’s responsibility (PDF).
A Polish individual (maybe an online seller of goods) is being sued by Amycel, and conducts business not only in Poland but also in the Netherlands. He asked for Polish translation to be provided by the court (as he says he would otherwise not be able to follow the proceedings) and for the costs to become part of the overall cost of the proceedings. What the court allowed him is to bring a translator at his expense, but that’s it.
Making such translation costs part of the overall costs of proceeding was deemed unreasonable, given that Polish is not a UPC language, much less one of the Hague LD, and considering that the defendant conducts business not only in Poland but also abroad, such as in the Netherlands.
Panel: Presiding Judge Edger Brinkman, Judge-rapporteur Margot Kokke, Judge Rute Lopes (Portugal).
Counsel for plaintiff Amycel: Brinkhof N.V.’s Rik Lambers.
Counsel for defendant (name redacted): JD&P’s Michał Przyłuski.
3. Dusseldorf LD: service of process at trade show booth is fair game
The Unified Patent Court’s Dusseldorf LD (Presiding Judge Ronny Thomas) authorized service of process of a complaint on a Turkish company at a trade show booth in Amsterdam. A trade show booth is, albeit temporarily, a place where the company conducts its business, and serving the complaint there saves time.
Plaintiff: M-A-S Maschinen- und Anlagenbau Schulz GmbH, represented by Dirk Jestaedt of Krieger Mes & Graf v. der Groeben and patent attorney Bernhard Ganahl of HGF.
Defendant: Altech Makina Sanayi ve Ticaret Ano (Turkey).