Defendants should get extra time to respond to documents when plaintiffs don’t upload relevant annexes along with their claim, the UPC Court of Appeal has ruled in its first-ever decision.
In an order issued on Friday, October 13, and seen by Managing IP, a three-judge panel granted Sanofi’s request for an extended deadline to respond to Amgen’s infringement lawsuit.
The UPC’s Munich local division initially rejected that request.
Sanofi had made the request on the grounds that Amgen’s claim referred to annexes that were only filed after the initial complaint.
According to the Munich division, Amgen properly served the claim even without the annexes. On that point, the Court of Appeal agreed.
Sanofi had argued that service of the complaint was only effective when the exhibits were provided.
The dates of service were July 11 for Sanofi and July 19 for co-defendant Regeneron. Sanofi's annexes were received on August 10.
Both the Court of Appeal and the local division ruled that the date the annexes were filed was irrelevant when determining the date of service.
However, the Court of Appeal said that Sanofi was nevertheless entitled to extra time to respond to the claim due to the late upload.
The Munich division had denied Sanofi’s request for more time because the annexes mostly referred to material that was already available to it.
But the Court of Appeal said that reasoning was contrary to Rule 13.2 of the UPC Rules of Procedure, which is designed to enable defendants to respond to all the materials a claimant refers to.
“This provision ensures that the principles of fairness and equity, which must be ensured by taking into account the legitimate interests of both parties, are sufficiently respected,” the decision said.
Amgen failed to comply with the rule when it didn’t upload the annexes to the court’s case management system at the same time as it uploaded the complaint, the decision added.
The decision continued: “The fact that an extension causes delay and … is contrary to the interests of the plaintiff cannot lead to a different conclusion.
“It is within the plaintiff's power to comply with Rule 13.2. Accordingly, the disadvantages associated with non-compliance with the rule should affect the plaintiff alone and not the defendant.”
The Court of Appeal panel was made up of Rian Kalden, Ingeborg Simonsson, and Patricia Rombach.
German law firms Bardehle Pagenberg and Hoffmann Eitle represented Amgen and Sanofi respectively.
Sanofi’s lawyers will now have until November 10 to submit their statement of defence.
