CASELAW-UPC – reviews of UPC decisions

UPC_CFI_367/2023 – Simultaneous interpretation under RoP 109 refused

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The patent, EP 2 681 034 B1, relates to a device and method for the generative production of three-dimensional components. The patent has been granted in German.

Brief outline of the case

A nullity action at the has been started at the UPC by, CEAD BV and CEAD USA B.V.  both residing in The Netherlands.

CEAD BV and CEAD USA B.V. have filed an application=request for simultaneous interpretation.

The parties have been summoned to the interim hearing on 29.05. and for the oral hearing=OP on 23.08.2024.

The request for simultaneous interpretation has been rejected by the rapporteur.

The requester’s point of view

The managing directors and the persons responsible for the proceedings are not fluent in German. Furthermore, both the authorized representative and the patent attorney involved are from the Netherlands.

As an expression of the right to be heard, these persons must not only be able to follow the proceedings but fully understand what is being said by the representative of the other party.

In accordance with Art 51(2) UPCA, interpretation is only requested for the representative due to lack of appropriate language skills in German.

As medium-sized companies, the applicants cannot be expected to to handle a case in several languages.

Since the attorney of the patentee will plead in German, a translation is also necessary for the coordination of the legal representatives, who must be able to understand each other’s contributions.

The applicants had not been able to choose the language of the proceedings, so that interpretation is appropriate.

Several representatives will make submissions at the hearing based on the scope of complex of disputes. In addition to the present proceedings, also a parallel infringement action before the Munich Local Court is pending.

The applicants had unsuccessfully approached the defendant with the whether they would be prepared to suggest to the court that at least the court to at least hold the interim hearing in English. The defendant had refused to do so.

The defendant’s point of view

All party representatives of the defendant speak the language of the proceedings, so that the defendant do not require simultaneous interpretation either in Dutch or in English.

The present applicants will be represented by authorized representatives of the law firm XX, who are native speakers of the language of the proceedings and have submitted extensive written submissions in the language of the proceedings.

It is not apparent why party representatives have to conduct the oral proceedings and the interim hearing who are not sufficiently proficient in the language of the proceedings.

The language skills of of other persons do not justify the ordering of simultaneous interpreting in accordance with RoP 109.

The rapporteur’s decisionUPC_CFI_367/2023

It is acknowledged that the applicants for simultaneous interpretation can be considered as a medium enterprise.

This circumstance do not mean that the applicants are entitled to simultaneous interpretation, the costs of which would be procedural costs.

Rather, the balancing of interests leads to the conclusion that the that ordering simultaneous interpretation would be disproportionate and must therefore be rejected.

The applicants are not to a greater extent than usual hampered by dealing before a multilingual international court by the language of the language of the proceedings.

The interests of the applicants are represented by three German-speaking representatives. In the course of the proceedings to date German language was used without the court becoming aware of any communication problems.

The fact that the fourth legal representative does not speak German does not change this assessment.

It does not matter what language skills a representative from an specific litigation representative from an international team has. In international disputes, a representative is typically chosen not only for the sake of its own skills, but also for the sake of the international multidisciplinary and multilingual environment in which he or she works and which usually involves a team of several representatives with different skills is involved.

What applies to the decision on the appropriateness of a change of language also applies to the ordering of a simultaneous translation:

The legal representatives complement each other and the assessment of the appropriateness of simultaneous interpretation does not depend on the language skills of one of several legal representatives.

The lack of German language skills of one of several legal representatives of a party does not justify the court ordering simultaneous translation within the meaning of RoP 109(2). Otherwise the party who chooses an international team with correspondingly diverse language skills would have the opportunity to significantly increase the significantly increase the costs of the proceedings.

The interest of the managing directors of the applicants to follow the proceedings in English or Dutch does not justify a court-ordered simultaneous translation either.

It is in the nature of an international court that not all representatives of the parties can follow the legal discussion directly during the oral proceedings.

If, in such cases, taking into consideration the parties’ language skills would have a considerable and unreasonable impact on the costs of the proceedings. This would be against the principle of proportionality.

The rapporteur added that the parties’ right to be heard is not violated

It may be, but is not subject of the present proceedings, that a change of language in infringement proceedings before the UPC may be necessary if the defendant itself does not speak the language of the proceedings.

However, the case here is different. No change of language is requested, but a simultaneous translation and the request is not made by the defendant, but by the plaintiffs.

Unlike the defendant in infringement proceedings, the plaintiff in nullity proceedings is not under a comparable time pressure, as it is at least during the preparation of the action is able to consult comprehensively with its legal representatives and plan its litigation strategies.

It is left to the applicants to decide whether they will insure, at their costs,  simultaneous interpretation into Dutch or English. The same applies to the legal representative and the patent representative of the plaintiffs not speaking the language of the proceedings.


What applies to the decision on the appropriateness of a change of language also applies to the ordering of a simultaneous translation.  

Simultaneous interpretation is not for the benefit of the party which choses a representative not mastering the language of proceedings among a team of representatives with this ability.

It will be interesting to see what will happen at the UPC when a party, by choice, will appoint a team of legal/patent representatives not mastering the language of proceedings. Should simultaneous interpretation under RoP 109 be granted? The free choice of representatives is one aspect, the increased costs of the procedure are a different one.

That the managing directors of a party are not able to follow the hearing in the language of proceedings is actually irrelevant. They can insure simultaneous interpretation at their costs.

The EPO has a similar attitude when it comes to simultaneous interpretation. The parties or an accompanying person do not benefit from simultaneous translation at the EPO. What matters is the representative. He should be able to follow the hearing.

It will be interesting to see when representatives will refrain requesting simultaneous interpretation at the UPC, but will require it at the EPO, although they are perfectly able to discuss in OP in one of the official languages of the EPO other than their mother tongue. In such a situation, the EPO could, or even should, refuse simultaneous interpretation.

The same applies when representatives having requested simultaneous interpretation at the EPO but are happy to continue the OP after the interpreters have stopped their duties at 18:00 or the latest at 20:00.

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