In his excellent article in the EPO Official Journal on a common culture and judgecraft in the UPC, Lord Justice Kitchin of the England & Wales Court of Appeal analyses some of the challenges that the new judges will face in the Unified Patent Court (UPC). He focuses in particular on judicial conduct, case management and judgments, and his conclusion stresses “the importance of the judges of this new court working together to develop consistent, reliable and transparent approaches to the exercise of the considerable powers and discretions which will be conferred upon them”.
Despite the years of effort that have gone into drafting the UPC Agreement and the very detailed Rules of Procedure, there will be much discretion left to individual judges and panels in the new system. With the new court now expected to start hearing cases in early 2017, I expect that this year will see a greater focus on these kinds of practical questions about how it will operate.
How will cases be handled?
With that in mind, and as previewed in my last blog post, between now and the launch of the UPC we will be publishing a series of articles where patent practitioners address how hypothetical scenarios might be tackled once the UPC is running. The first article in this series, which is now available online and will be published in hard copy in February, concerns an electronics patent, which is not essential to a standard. It has been granted, not opposed, validated in several countries and not opted out of the UPC. In the article, Wouter Pors of Bird & Bird discusses whether or not to opt out of the UPC, which forum might be most appropriate and how to deal with any counter-claims.
Other articles we have lined up will look at scenarios in different industries and situations, including from the point of view of defendants. If there is a particular scenario you would like to see covered, please email me the details. Over the coming year, we hope to consider cases that raise a wide range of procedural and jurisdictional challenges, and build up an unrivalled resource for future litigants in Europe.
Who will the judges be?
How cases will actually proceed, though, will of course depend on the judges. And, despite the progress being made on many aspects of the new system (such as the Rules of Procedure, IT and fees) we still do not know who they will be.
I discussed this question last week with Richard Ebbink, a litigator with Brinkhof in Amsterdam and the immediate past president of EPLAW, which held its annual meeting with European patent judges in Venice last October.
He confirmed that the work on appointing the judges, and training them where necessary, is proceeding, even if there remain some obstacles to be tackled: “There are some difficulties regarding the remuneration of the judges, including pensions, and how to combine their UPC responsibilities with their national obligations, but we expect these to be resolved soon.”
In most of continental Europe, people become judges as a career and tend to move up through the ranks. In the UK and Ireland, by contrast, an appointment as a judge typically comes after a distinguished career as a litigator. Salaries and other benefits therefore vary widely.
Moreover, at least in the beginning, the UPC is unlikely to provide enough work for many full-time judges, and in any case some countries are likely to want to retain their expertise in national courts at least on a part-time basis. That means time- and cost-sharing will have to be worked out – and done so in a way that is fair to all judges and member states.
With perhaps 12 to 15 local and regional divisions expected (not all are confirmed yet) in addition to the three branches of the central division, there will probably be up to 50 legal judges plus many part-time technical judges in the UPC first instance. But with so many divisions, the Court of Appeal – which will sit in panels comprising three legal judges and two technical judges – is likely to have a vital role to play. As Ebbink says: “I expect nearly everything appealable will be appealed in the early stages, as parties will want to establish certainty and iron out any differences between the divisions.”
Who then is likely to be in the Court of Appeal? Here are some predictions (assuming they are willing to serve): Klaus Grabinski and Peter Meier-Beck from Germany, Robert van Peursem and Rian Kalden from the Netherlands, Christopher Floyd and David Kitchin from the UK. There may be others to ensure a fair geographic spread. If I had to guess who would be the president, I would go for Grabinski.
UPC impact on national courts
UPC sceptics (of which there remain many) may take solace in the fact that the extensive transitional opt-out period means they won’t need to worry about the UPC for many years, possibly for the rest of their careers. But things may not be that simple. In fact, national courts are unlikely to escape the influence of the UPC – as became clear at recent EPLAW meetings, says Ebbink: “One of the questions is what approach national courts should take during the transition period. From the recent judges meeting in Venice and EPLAW meeting in Brussels, it was clear that the judges think the UPC rules should be applied nationally as well, but lawyers were more willing to accept the consequences arising from having two different sets of rules for some time to come.” These are questions that AIPPI is addressing too, in particular in its analysis of Article 83.
Of course it makes sense that national courts will take account of the UPC, particularly when you consider that many of the judges in the national courts and the UPC are likely to be the same people, possibly even sitting in the same courtrooms, dealing with similar disputes.
What’s more, said Ebbink, there are signs that in practical terms national judges are already adapting. In the Netherlands, for example, the courts are open to hearing cases in English. And he adds: “As we approach the implementation of the UPC, judges will be more and more sensitive to its rules and procedures, and that will be reflected in procedural decisions of national courts.”
So although the first cases in the UPC may still be a year off, its impact may be felt in cases much sooner than that.
