Taking evidence in proceedings before the UPC


Annelise Holme

Having a patent does not guarantee that a product or process infringes a patent, and in an infringement case it is very important for each party to provide the court with sufficient and relevant evidence supporting its case.

The law provides certain guidelines to ensure that evidence presented to the court can be regarded as trustworthy. In Europe, the measures available to obtain evidence have varied from jurisdiction to jurisdiction. In 2004, in an effort to harmonise these measures, EU Directive 2004/48/EU on the Enforcement of Intellectual Property Rights came into force.  However, there remain significant disparities in evidence-gathering procedures in patent jurisdictions in the EU. 

Now, with the signing of the agreement on a Unified Patent Court (UPC) on February 19, 2013 and, at the time of writing, a 16th draft of the Rules of Procedure available, there is the prospect of new approaches to obtaining evidence applicable across all the UPC contracting states.

In disputes before the UPC, the parties can rely on any means of evidence they consider relevant to prove their case. A non-exhaustive list of means of giving or obtaining evidence is provided, and includes written evidence, eg, printed and drawn documents, photographs, expert opinions, statements, physical objects, and audio or video recordings.

UPC; patent infringement; patent application.