Rule 19

Preliminary objection

Rules of Procedure

Part 1 – Procedures before the Court of First Instance

Chapter 1 – Written procedure

Section 1 – Infringement action

Procedure when the defendant raises a preliminary objection

Rule 19 – Preliminary objection
  1. Within one month of service of the Statement of claim, the defendant may lodge a Preliminary objection concerning:
    1. the jurisdiction and competence of the Court, including any objection that an opt-out pursuant to Rule 5 applies to the patent that is the subject of the proceedings;
    2. the competence of the division indicated by the claimant [Rule 13.1(i)];
    3. the language of the Statement of claim [Rule 14].
  2. A Preliminary objection shall contain:
    1. particulars in accordance with Rule 24(a) to (c);
    2. the decision or order sought by the defendant;
    3. the grounds upon which the Preliminary objection is based; and
    4. where appropriate the facts and evidence relied on.
  3. The Preliminary objection shall be drawn up in the language pursuant to Rule 14.
  4. If the action has been commenced before a regional division the defendant may by a Preliminary objection request a transfer of the action to the central division pursuant to Article 33(2) of the Agreement. The Preliminary objection shall in such a case contain all facts and evidence supporting the existence of the same infringement in the territories of three or more regional divisions.
  5. The Registry shall as soon as practicable invite the claimant to comment on the Preliminary objection. Where applicable, the claimant may of his own motion correct any deficiency [paragraph 1(b) or (c)], within 14 days of service of notification of the Preliminary objection. Alternatively the claimant may submit written comments within the same period. The judge-rapporteur shall be informed of any correction made or written comments submitted by the claimant. If the deficiency referred to in paragraph 1(b) is corrected and the claimant has indicated another division, which is competent, the judge-rapporteur shall refer the action to the division indicated by the claimant.
  6. The period for lodging the Statement of defence [Rule 23] shall not be affected by the lodging of a Preliminary objection, unless the judge-rapporteur decides otherwise.
  7. The defendant’s failure to lodge a Preliminary objection within the time period referred to in paragraph 1 shall be treated as a submission to the jurisdiction and competence of the Court and the competence of the division chosen by the claimant.

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