10x Genomics v Curio (UPC_CoA_101/2024)
Decision date:
10 April 2024
Osborne Clarke summary
- 10x Genomics applied for provisional measures against Curio. Subsequently, Curio applied for a change of language of the proceedings from German to English. Curio's application was rejected by the President of the Court of First Instance. The present decision concerns Curio's appeal against that decision.
- The Court of Appeal noted that when deciding on a request to change the language of proceedings to the language of the patent on grounds of fairness, all relevant circumstances must be taken into account.
- Relevant circumstances should primarily be related to the specific case and the position of the parties. The Court of Appeal stated that relevant circumstances related to the specific case may include, amongst other things, the language mostly used in the field of technology involved, of particular relevance - the language the evidence (including prior art) is primarily written in, the nationality or domicile of the parties and/or relative size of the parties to each other.
- The Court of Appeal stated that, according to Article 49(5) UPCA, if the outcome of balancing of interests is equal, the position of the defendant is the decisive factor. The reason for this being that the claimant has the choice where (with some divisions having multiple languages designated) and when to bring proceedings (except in cases of extreme urgency). It therefore can decide how much time it takes to prepare its statement of claim, whereas the defendant is immediately bound by the UPC's strict time limits. Moreover, where the claimant is asserting a patent, it must be taken into account that it chose the language of the patent when filing the application and therefore must anticipate that it might litigation in that language.
- Applying the general principles to the present proceedings, the Court of Appeal held that the request to change the language of the proceedings to the language of the patent (English) must be allowed and therefore Curio's appeal was successful.
- In particular, the Court of Appeal considered the following factors in favour of Curio: both companies are US companies, the language of the underlying technology field is English, the infringement evidence 10x Genomics relied on is almost exclusively in English, and that the majority of the evidence Curio relies on for its defence is also in English. However, the Court of Appeal was clear that the language skills of the party's representatives is not a relevant factor to be considered.
Issue
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