1. Key takeaways
The fact that the parties are domiciled in countries where the language of the proceedings chosen by the claimant is an official language is an important factor in the decision on an application to use the language of the patent as the language of the proceedings.
An important factor is the fact that the claimant and two of the three defendants are domiciled in countries where German is an official language. MED-EL, Advanced Bionics AG and Advanced Bionics GmbH are domiciled in Austria, Switzerland and Germany respectively, while Advanced Bionics SARL has its domicile in France. Therefore, conducting the proceedings in German aligns with MED-EL's legitimate interests. Conversely, changing the language to English is not necessary to achieve a fair outcome for the defendants, as the official languages of their countries of domicile are German or French, not English.
Art. 49(5) UPCA does not require the application for a
language change to be included in the Statement of defence. Against
this background, R. 323.3 must be interpreted in such a manner that
it does not preclude the lodging of the application before the
Statement of defence.
Lodging the application before the Statement of defence is
generally even more expedient, since it ensures that, if the
application is successful, the language change can be implemented
at an early stage of the proceedings.
2. Division
Luxembourg Court of Appeal
3. UPC number
UPC_CoA_207/2024
ORD_42779_2024
4. Type of proceedings
Appeal against an order rejecting an application to use the language of the patent as the language of the proceedings
5. Parties
APPELLANTS and Defendants in the main proceedings:
- ADVANCED BIONICS AG (Stäfa, Switzerland)
- ADVANCED BIONICS GMBH (Fellbach-Oeffingen, Germany)
- ADVANCED BIONICS SARL (Bron Cedex, France)
RESPONDENT and Claimant in the main proceedings:
MED-EL ELEKTROMEDIZINISCHE GERÄTE GESELLSCHAFT M.B.H. (Innsbruck, Austria)
6. Patent(s)
EP 4 074 373
7. Body of legislation / Rules
Rule 323 RoP, Art. 49(5) UPCA
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