Spanish courts spend a great deal of time on “service of process.” Thus, when a defendant in a patent infringement case files a counterclaim challenging the validity of the patent, the court must serve the counterclaim on the plaintiff. This service of process is of vital importance because it triggers the two-month deadline for responding to the counterclaim. However, this is a symbolic service because the plaintiff already has the document in their possession thanks to the “service between legal representatives.” Wouldn’t it be more logical for the time limit to begin from that earlier service? Practical, yes, but an immediate affront to the principle that the proceedings must be driven and controlled by the court. The solution is simple. At a later stage, the court issues a ruling carrying out a symbolic “service” and initiating the time limit.
So far, so good. However, things became more complicated when the 2015 Patent Act allowed the patent holder to file a motion to limit the scope of the patent in response to the counterclaim. Although this had always been possible under Article 138.3 of the Spanish Civil Procedure Code (CPE), it lacked a specific procedural framework in the Civil Procedure Act, which had led to some improvisation on the part of the courts. Article 120 of the new Act changed all this by specifying that the request for limitation must be filed with the answer to the counterclaim and by setting a two-month deadline for a response. As usual, the court was required to “serve” the request on the counterclaimant, whose deadline for responding, however, began upon “receipt” of the request. This gave rise to a series of academic articles arguing that the start of this new deadline would not be the court’s “service,” but rather much earlier—from the moment of service between legal representatives.
In its order dated February 11, Commercial Court No. 5 of Barcelona ruled on this matter in favor of judicial service:“Any other interpretation of the proposals would mean leaving it up to one of the parties to determine when procedural deadlines begin to run and to drive the proceedings forward, in addition to rendering the provision set forth in the first paragraph of the statute meaningless. Taken to the extreme: if the time limit were to begin running from the moment the request is received—that is, upon transmission between legal representatives or between the parties themselves—what would be the purpose of transmission by the judge or court?” Article 120.5 “in no case authorizes circumventing or delegating the responsibility for driving the proceedings, controlling the timelines, and calculating them by the judicial body.”
Author: Colm Ahern