The UPC has continued to show flexibility with its approach to
the CMS, with a Panel exercising its discretion to allow the filing
of a hard copy of an intervention. The UPC Rules of Procedure state
that written pleadings and other documents must be lodged in
electronic form (Rule 4.1). Where it is not possible to do so due
to an issue with the CMS, a hard copy document may be lodged with
an electronic copy then lodged as soon as practicable after (Rule
4.2).
In an Order dated 1 October 2024 (in the matter of Insulet v
EOFlow, UPC_CFI_380/2024), the Panel in the Central Division, Milan
ruled the hard copy filing of an application to intervene to be
admissible. Pharmaceutical company Menarini had filed an
application to intervene in the infringement proceedings where its
distributor EOFlow was the defendant. The claimant, Insulet,
questioned the admissibility of the intervention as the document
was not filed electronically, as required by the Rules of
Procedure. The panel confirmed that the CMS currently does not have
the functionality to allow third parties to file documents into a
workflow in ongoing cases. Menarini's hard copy filing was
therefore deemed to be admissible.
Despite the filing being admissible, Menarini's application was dismissed as the Panel considered the application to have been filed too late into the process to be compatible with the upcoming trial date.
Concerns with the usability of the CMS have required Judge Rapporteurs and Panels to exercise their discretionary powers to avoid parties being disadvantaged. Such discretion has been exercised frequently but we would advise that users of the CMS system seek to lodge documents well ahead of deadlines to ensure that documents are lodged correctly. Further, litigants can also rely on filing Rule 9 applications if existing workflows are not appropriate or do not allow filing. UPC registry clerks are also extremely helpful to guide litigants around some of these common problems with filing.
The UPC announced in July that they are cooperating with the EPO on developing a completely new CMS platform. It is hoped that this new platform will address the lack of access to workflows for third parties, along with other reported teething problems.
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