31. UPC Keynotes – Intervention in UPC Proceedings

How is the intervention in proceedings regulated by the UPC? A recent UPC order provides interesting insight in this regard.

In our today's update, we analyse the intervention and its relevant principles and conditions described in the UPC order N 52068/2024 dated October 1, 2024.

Intervention in UPC proceedings is provided by Rule 313 et ss. of the UPC Rules of Procedure (RoP). According to Rule 313, para. 1: “An Application to intervene may be lodged at any stage of the proceedings before the Court of First Instance or the Court of Appeal by any person establishing a legal interest in the result of an action submitted to the Court (hereinafter “the intervener”).”

No further elements are provided to delimit the aforementioned legal interest to be asserted.

Therefore, it is useful to consider the recent UPC order at hand that has outlined the threshold of that legal interest.

On July 3rd, 2024, the US-based company INSULET CORPORATION 100 (hereinafter referred to as “INSULET” or “Applicant”) filed an application for provisional interim measures against the Korea-based company EOFLOW Co. Ltd (hereinafter referred to as “EOFLOW” regarding “Defendant”) with the UPC Milan Central Division.

The application for provisional measures was filed for patent infringement related to claims 1, 2, 3 and 4 of the European Patent with Unitary Effect No. UP 4 201 327 C0, whose proprietor is INSULET.

INSULET filed a further parallel application for provisional measures against A. Menarini Diagnostics s.r.l. (hereinafter referred to as “MENARINI”), which is the exclusive distributor of the attacked embodiment, with the UPC Local Division of Milan.

On September 16th, 2024 MENARINI filed an application to intervene in the former proceedings before the UPC Milan Central Division pursuant to Rule 313 et ss. RoP.

MENARINI asked for an intervention on the facts that a decision in the present case would affect the legal interests of MENARINI regarding (i) the upstream contractual relationship with EOFLOW (the Defendant in the proceedings and the manufacturer of the attacked embodiments) as well as (ii) the downstream contractual relationships with MENARINI own customers.

EOFLOW supported the request of intervention with written submissions. On the other hand, INSULET opposed the intervention pointing out that MENARINI had no legal interest to intervene in the case at hand.

With the order no. ORD_52068/2024 dated October 1, 2024 (https://www.unified-patent-court.org/sites/default/files/files/api_order/A487F0C4BA8FC5679C15D8BFD57BE788_en.pdf) the UPC Milan Central Division rejected the request for intervention on the following grounds.

1.?Intervention in interim injunction proceedings is only available in exceptional cases.

However, in the case at hand intervention would slow down the proceedings:

• “As the acceleration of the proceedings is therefore the main purpose of interim injunction proceedings and proceedings on the merits must be initiated subsequently, interim injunction proceedings must not be overloaded, for example with interventions that could slow down the proceedings and, above all, can be made in proceedings on the merits.”.
• MENARINI knew about the parallel proceeding between EOFLOW and INSULET already on August 6th but chose to intervene weeks later in proximity of the oral hearing and only after the competent Court rejected the request of joinder of the two parallel proceedings, filed both by MENARINI and by EOFLOW, rejected both by the Judge rapporteur and the panel.
• There is an already scheduled hearing for October 16th, 2024.

2. Intervention is allowed to a third party if it has its own interest not merely factual but legal, pursuant to Rule 313 Rop:

• According to the UPC Milan Central Division: “The third party must therefore present itself as the owner of a legal relationship connected with the one brought in litigation by the counterpart or dependent on it and the connection must entail a total or partial impairment of the right of which the third party claims to be the owner in the event the original party loses the case; that is to say, it is necessary to be the owner of a substantial situation connected with the relationship brought in litigation, such as to expose the third party to the reflexive effects of the judgement”.
• However, in the case at hand the legal interest of MENARINI is already granted by way of defence in the parallel proceedings in front of UPC Milan Local Division.
• Furthermore, the defendants in the two parallel proceedings (EOFLOW and MENARINI) have already tried to avoid parallel proceedings by filing a request of joinder, rejected both by the Judge rapporteur and the panel.
• If the third party has a mere de facto interest in one of the parties to the principal relationship being victorious, to only support the parallel case, no legitimacy to intervene can be acknowledged and this is precisely the situation that arises in the present case, since MENARINI already defends its interest in a parallel proceedings in front of UPC Milan Local Division and his intervention is merely aimed at strengthening EOFLOW’s defence.
• Moreover, MENARINI’s interest raised is “merely hypothetical whereas the risk of divergent decision, above all in pre-trial cases, cannot be entirely eliminated”.

According to the UPC Courts, intervention can be granted only if there is a concrete legitimate interest and it should be considered as an exception which does not interfere with the course of the proceedings, especially when the intervention is requested in an interim proceedings.

Again in view of the UPC Court's decision, it appears that the lack of a legitimate interest for MENARINI was found by the Court to be due to the fact that MENARINI could already assert its interest - which was in any event considered de facto and not legitimate - in another parallel proceedings.

A further ancillary question therefore arises as to how a further application for intervention would be considered in the absence of such parallel proceedings.