1. Key takeaways
For a decision according to Art. 49 UPCA it may be sufficient that the initially chosen language is significantly detrimental to the Applicant. A disproportionate disadvantage is not necessary
The decision has to take grounds of fairness and all relevant circumstances into account, Art. 49(5) UPCA. Decisive are the respective interests at stake.
Assertions of detriments must be substantiated with detailed information or relevant data explicitly invoked
A sufficient detriment may be a “small or medium-size enterprise” (SME) facing a global player if sufficiently substantiated.
Fairness is affected if the Applicant is restricted in their possibility of organising efficiently their defense. The timeframe of an application for provisional measures is no factor in this regard
Fairness may be undermined by a change of language if both parties are initially equally confronted with a foreign language and relating inconvenience in terms of translation and interpretation needs
Interests of the Court – concurring with those of the users – cannot prevail if no other circumstances call for a change of language
Allegedly facilitating the general organisation of judicial activites at both first instance and appeal levels cannot be a factor in this context.
2. Division
President of the Court of First Instance, Local Division Düsseldorf
3. UPC number
UPC_CFI_463/2023
4. Type of proceedings
Application for provisional measures
5. Parties
Applicant (defendant in main proceedings): Curio Bioscience Inc.
Respondent (applicant in main proceedings): 10x Genomics, Inc.
6. Patent(s)
EP 2 697 391
7. Body of legislation / Rules
Rule 323 RoP, Art. 49 UPCA
8. Orders cited
LD The Hague – UPC_CFI_225/2023 (October 18, 2023)
LD Düsseldorf – UPC_CFI_373/2023 (January 16, 2024)
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