Means of evidence before the UPC: something old, something new, something borrowed
From the perspective of a German lawyer, the rules on evidence before the Unified Patent Court (UPC) provide for an interesting mélange of known principles, new regulations and regulations which have apparently been taken over from other jurisdictions.
The majority of the means of obtaining evidence mentioned in Article 53(1) of the Agreement on a Unified Patent Court (UPCA) and Rule 170.2 of the Rules of Procedure of the Unified Patent Court (RoP) are familiar, such as hearing of the parties and witnesses, opinions from Court experts, production of documents and inspection of places or physical objects. The same applies to the Order to produce evidence in accordance with Article 59 UPCA and Rule 190 RoP, which can be directed against an opposing party as well as a third party which is not involved in the proceedings, or the rules on burden of proof in Articles 54 and 55 UPCA.
An interesting new aspect under the UPCA is that witness evidence can be provided not only by questioning the witness in the oral hearing, but also by means of a “sworn statement in writing” (Article 53(1), lit. h, UPCA). According to Rule 177.1 RoP, the Court may still order that the witness be heard in person, e.g., where a written witness statement is challenged by the other side.
Furthermore, the parties may also provide evidence in form of written statements by their own experts (Rule 181 RoP) – here, the rules on witness evidence apply, so that the Court may also order that party experts be heard in person. This provides for important decisions when preparing witness evidence, including the choice of witnesses and experts and the form in which the evidence is presented.
In general, the list of means of evidence in Rule 170.1 RoP, and the list of means of obtaining evidence in Article 53(1) UPCA and Rule 170.2 RoP, are quite comprehensive, including all means of evidence accepted in Common Law and Civil Law. Notably, both lists are non-exhaustive (indicated by the wording “in particular”), which is again a deviation from the exclusive list of permitted means of evidence known in the German Code of Civil Procedure (ZPO). What also is “borrowed” from Common Law is the witness declaration mentioned in Rule 178 RoP (“I solemnly, sincerely and truly declare and affirm that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.”) which closely resembles the affirmation under the UK Oaths Act (1978).
Since the UPCA and the RoP provide for a tight schedule, evidence must be indicated and preparations for taking of evidence must be made at an early stage in the proceedings, for example (already) in the infringement complaint (Rule 13.1, lit. m, RoP), and with regard any "statement of fact that is contested or likely to be contested by the other party” (Rules 171.1 and 172.1 RoP). Of course, in most cases, no statement is already contested at the time of the infringement complaint – this leaves it to the Plaintiff to decide which statements are “likely to be contested” and should, therefore, be supported by corresponding evidence. To be on the safe side, it is recommendable for a Plaintiff to indicate means of evidence as comprehensively as possible in order to eliminate any objections by the Defendant that such indications were too late.