Aarke v SodaStream Industries (CFI, 16 January 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By an order of 16 January 2024 (UPC_CFI_373/2023, ACT_590837/2023), the President of the Court of First Instance (F. Butin), after consulting the panel of the Düsseldorf Local Division, granted the application of Aarke AB, defendant in SodaStream Industries Ltd.’s action for infringement of EP 1 793 917, and changed the language of proceedings from German to English, the language in which the patent was granted. The order gives real weight to the defendant’s status as an SME.

Question

Is an application to change the language, lodged before the Statement of defence and drafted in English, admissible, and does fairness justify a switch to the language of grant under Art. 49(5) UPCA?

Decision

Rule 323.1 RoP requires the application to be made no later than the Statement of defence, not to be included in it. The contrary reading would be unnecessarily restrictive in light of point 4 of the Preamble. As the Registry did not return the document filed in English (Rules 7.1 and 14.4 RoP), there was no ground to reject it. On the merits, it is enough that the initial language is significantly detrimental to the applicant. A disproportionate disadvantage need not be shown. Aarke, an SME with a turnover of about EUR 21.5 million and 45 employees, faces a group active in 46 countries, the imbalance in organising the defence is held to be significant, the Agreement aiming to secure access to justice for SMEs (Recital 2, Art. 36(3)). The judges’ native language is irrelevant.

Key points for practice

• Practical point: the relative size of the parties and their everyday working language weigh directly in the fairness assessment under Art. 49(5) UPCA, the application may be made before the Statement of defence.

Provisions applied

Agreement on a Unified Patent Court

Recital 2, Art. 36(3), Art. 49(1), (3), (4) and (5), and Art. 73(2)(a)

Rules of Procedure

Preamble points 2, 4 and 5, Rules 7.1, 14.4, 220, 323 and 324

Case law cited

The Hague Local Division, order of 18 October 2023, UPC_CFI_225/2023

Prepared by Dhenne Avocats from the official decision, consulted on 10 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.