The UPC has been in operation for 100 days. One of the interesting questions in the early case law relates to whether the time of day is to be taken into consideration when determining which of several events happened first. In a webinar, the colleagues of Hoffmann Eitle have provided insights on such a situation, in which a revocation action (with the central division) and an infringement action (with a local division) were filed on the same day but with a time delay of 19 minutes between them. In the proceedings dealing with the admissibility of the revocation action, the Court had to consider whether time of day is to be taken into consideration for determining which action was filed first (with the deciding decision apparently being of the opinion that time of day matters is relevant when determining which action was filed first, in the interest of legal certainty).
This rationale is interesting in consideration of the fact that (i) in many other jurisdictions, it is only the date that matters (and some Courts, such as the German Federal Patent Court, do not appear to be set up for determining at which time of day an action is received when filed in paper form); (ii) may stakeholders are inclined to adopt a “first to act” strategy (in particular if they believe a local division to be more patentee-friendly than the central division, as also discussed in Hoffmann Eitle’s webinar today), with the time of day being potentially decisive for who was first to act; and (iii) the “smallest unit of time” for determining which event happened first (time of day or date only) can be relevant for scenarios other than infringement / revocation actions, such as determining whether an opt out or UPC revocation was effective earlier (relevant for the admissibility of a UPC revocation action).