Background

The order relates to a case in which Amgen had filed a claim against Sanofi.

When filing its statement of claim, Amgen did not upload on the UPC case management system (CMS) some of the annexes referred to in the statement of claim. The question was what effect (if any) the missing annexes would have on: 1) the date of service; and 2) the deadlines for Sanofi to respond to the statement of claim.

Sanofi requested an extension of time based on the general principles of equity and Rule 9.3. However, this request was rejected by the Munich Local Chamber by a decision dated 29 August 2023. Sanofi subsequently appealed the decision to the UPC Court of Appeal.

The UPC Court of Appeal’s order was pronounced orally without reasons after a hearing held on 13 October 2023. The written decision was subsequently issued in German on 16 October 2023.

The UPC Court of Appeal’s decision

The UPC Court of Appeal agreed with the Munich Local Chamber that the content of the statement of claim is exhaustively listed in Rule 13.1, which does not require the annexes. Therefore, the fact that the annexes were not served on Sanofi together with the statement of claim was found to be irrelevant for determining the date of service.

The Munich Local Chamber held that no extension to time limits was necessary, because most of the annexes were already available to Sanofi, or if not, were publicly available or reproduced in the statement of claim.

The UPC Court of Appeal disagreed and held that Rule 13.2 requires that at the same time as filing the statement of claim, the claimant must supply a copy of each of the documents referred to in it, regardless of their nature and/or content. Further, that it is inequitable to place the burden of proving the relevance of the annexes on the defendant.

Therefore, the UPC Court of Appeal held that, whilst the date of service is unaffected when a statement of claim is filed with missing annexes, except for special circumstances, the time limits to respond to the statement of claim should be extended by the period during which the annexes were not available.

Take-home messages

The outcome of this order is that, when filing a statement of claim, claimants cannot tactically delay filing the accompanying annexes to put additional time pressure on defendants. This outcome appears consistent with the general principles of equity.

Case details at a glance

Parties: Sanofi-Aventis Deutschland GmbH, Sanofi-Aventis Groupe SA, Sanofi Winthrop Industrie SA, Regeneron Pharmaceuticals Inc v Amgen, Inc
Case number: APL_572929/2023 UPC_CoA_320/2023
Order/Decision reference: ORD_580110/2023
Type of action(s): Appeal under RoP 220.2
Court - Division: Court of Appeal - Luxembourg (LU)`
Language of Proceedings: German
Date: 13 October, 2023
Download decision EN (PDF): www.unified-patent-court.org
Download decisoin DE (PDF):www.unified-patent-court.org