Recently, an infringement action was brought before the Local Division of the Hague and the language regime of the UPC was put into test. At first, the Applicant chose the Dutch language as the official language of the proceedings. Nevertheless, the Applicant requested a change of the language of the proceedings from Dutch to English, in line with Rules 322 and 323 of the Rules of Procedure. The Applicant evoked among other arguments that English was the language that the patent was granted in and highlighted the disproportionate financial burden it had to carry, being a Spanish start-up. The Respondent replied by reminding to the Court that the Dutch division was chosen from the parties and as a result the choice of the Dutch language should be considered more than obvious. The Court decided in favor of the Applicant and the language of proceedings was changed into English. This decision gives room to argue that the broader acceptance of the English language could indeed help to the establishment of the UPC as an international Court and it also sparks the conversation around the topic of the so-called “division shopping”.
Pursuant to Article 33 para.1 of the UPCA, the patentee may decide in which local division would like to bring the action of infringement before. Forum shopping is not available according to paragraphs 5 and 6 of said Article, where it is explicitly stated the competent division in a case of a counteraction. The claimant stays in charge of the division choice.
However claimants may be tempted by “Division shopping” which is a result of the claimant’s freedom to choose the division of the Court that he believes to benefit most. The choice of the division also equals the choice of the language of the proceedings (unless the court does not decide to apply the patent’s language if admissible as a second language, such as eg English in Austria and Germany). As a result, the claimant may – to a certain extent – choose a division whose language of the proceedings gives him a clear advantage considering the litigation case and makes the defendant do more expenses in order to defend themselves in a not familiar language.
For example, if a defendant has its seat in Austria and the infringement takes place in Belgium, Netherlands and Italy, the action of infringement can be brought before the local divisions in Vienna, Brussels, The Hague and Milan. Respectively, except for English, in this particular case, the languages available are German, French, Dutch and Italian. On a second aspect, the choice of the local division may also have its roots to the “couleur locale” each division holds. Always within the frame set by the UPCA and the Rules of Procedure of the UPC, each court room respectively may give a tint of national law to the decision of the Court. Though this should not even possible, since each local division is held by judges from at least two Member States, who take the exact same training, it cannot excluded per se, especially for divisions with two judges from the same country. The Court of Appeals will be held to harmonize the application of law throughout all divisions and aim for a uniform approach in patent litigation. These arguments are about to be confirmed or dismissed by the upcoming case law.