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UPC – Arkyne Technologies v. Plant-e Knowledge / Change of Language of the proceedings

Posted: October 25th, 2023

Arkyne Technologies S.L. v. Plant-e Knowledge B.V. and Plant-e B.V, Order of the President of the Court of First Instance, Local Division The Hague, Pursuant to R. 323 RoP (language of the proceedings), Case no. UPC_CFI_239/2023

Plant-e Knowledge B.V. and Plant-e B.V. have brought an infringement action against Arkyne Technologies. By application dated 21 September 2023, Arkyne referring to both R. 322 and R. 323 RoP, has asked for a change of the language of the proceedings from Dutch into English as the language in which the patent has been granted (hereinafter the Application).

Merits of the Application
“According to Art. 49 (5) UPCA, the use of the language in which the patent was granted as the language of the proceedings can be decided “on grounds of fairness and taking into account all relevant circumstances including the positions of parties in particular the position of the defendant”. R. 323.2 and .3 RoP provide next that: “The President shall invite the other party to indicate, within 10 days, its position on the use of the language in which the patent was granted as language of the proceedings” and “having consulted the panel of the division, may order that the language in which the patent was granted shall be the language of the proceedings and may make the order conditional on specific translation or interpretation arrangements”. Finally pursuant R. 324 RoP, an Application under Rule 321.1 or 323.1 “shall specify whether existing pleadings and other documents should be translated and at whose cost. If the parties cannot agree the judge-rapporteur or the President of the Court of First Instance, as the case may be, shall decide in accordance with Rule 323.3”.

“In the present case, it is not disputed that both parties have a good command of English, which is one of their working languages and also the language in which the exchanges prior to the infringement action have been conducted, as it appears from the list of productions
submitted along with the statement of claim and through the links cited in the request.

“Consequently, the use of English would not affect the interests of the Respondents, who have already provided a translation of the statement of claim which was served on 10 August 2023.

“Furthermore, it follows from Art. 49 (5) UPCA that the decision to change or not to change the language of the proceedings into the language in which the patent was granted shall be determined with regards to the respective interest at stake without it being necessary to constitute a disproportionate disadvantage. As a result, it may be sufficient that – amongst all relevant circumstances also to be considered – the language initially chosen is significantly detrimental to the Applicant.

“In that regard, being sued before the Court in a language that they do not master is an important inconvenience for the Applicant even if being assisted by Dutch representatives. It indeed implies that all the preparatory discussions and work are handled in English whereas
the whole submissions have to be translated, which represents considerable time and costs even if facilitating solutions can be used. In addition, it has to be taken into consideration that the Respondents did not put forward a particular justification for not agreeing to the requested change.

“Finally, the Applicant doesn’t request that existing documents already submitted in Dutch language should be translated pursuant to R. 324 RoP so that adopting the language of the patent doesn’t result in any further detrimental consequence for the Respondents.”

The order can be read here.

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