The stringent rules for part-time Unified Patent Court judges published last week are a good start, but there is one key problem.
There are still part-time judges.
During conversations with intellectual property practitioners over the past few months, I have found a lot of goodwill for UPC officials.
Nobody would claim that building a new, transnational court is easy – just look at the travails of the UPC’s case management system.
Court officials have the unenviable job of having to guess what the level of activity in the new system might be and ensuring the court can cope with it.
But the court’s use of part-time judges, including some employed in industry, is a scandal that could and should have been foreseen from the start.
Point of principle
I should say at this point, I have no doubt over the personal integrity or moral fibre of any of the UPC’s judges.
They might be incorruptible, but that’s not the point.
Judicial independence is a matter of principle and a very basic principle at that.
The Council of Europe says it’s “one of the key components of the rule of law”, alongside the right to a fair trial and the principle of effective judicial protection.
Judicial independence seems so fundamental to the reputation of any court, let alone a new one, that I’m surprised how many people seem prepared to risk it.
The UPC administrative committee has tried to anticipate and head off some of the issues likely to arise with part-time judges in a code of conduct agreed last month.
Part-time, technically qualified judges are made up of practising in-house counsel as well as attorneys and lawyers from private practice.
The code makes it clear that these judges won’t be able to appear before the court as representatives.
It also includes extensive guidelines on when judges should recuse themselves and when parties can object to a judge’s appointment.
Those guidelines will probably resolve obvious conflicts of interest where the judge or their law firm has clear links to one of the parties.
If I had to guess, though, I would still expect rows over conflicts to crop up early and often.
Many patent lawyers may see the UPC as a historic achievement and be grateful for the chance to participate in the birth of a new court.
Accused infringers, on the other hand, will have no interest in being there whatsoever and will probably look for a way out instead.
They and their counsel will seek ways to call the integrity of the whole procedure into question. Unfortunately, I don’t think they will have much difficulty.
In-house influence
In particular, the presence of in-house counsel on the bench seems untenable.
I don’t want to single out individuals, and I stress again that I don’t doubt anyone’s integrity.
But I would point readers to the full list of companies where the in-house counsel named as part-time UPC judges had day jobs at the time of their appointment: Agfa-Gevaert, Airbus, Bose, CSL Behring, Lundbeck, Nokia, Orange, and 3M.
All of these companies have an interest in strong patent enforcement rights and will take an active interest in how UPC case law develops.
Their employees now have the chance to help shape that case law, during a phase when just about everything the court does will be precedential.
In-house attorneys may be part of judicial panels that decide, for example, when injunctive relief should be available and how it is applied.
Europe-wide injunctions at the UPC will be one of the most powerful enforcement tools patent owners have ever had.
In the context of pharmaceuticals, for example, UPC injunctions could have major implications for huge numbers of patients and their access to a particular treatment.
It is up to a judge to weigh up such factors and decide the scope of an injunction accordingly.
But are we really going to pretend an in-house counsel from the pharmaceutical industry would have no conflict of interest here?
I am not saying any of the companies named above, or any other company that might employ part-time judges in future, would lean on their staff to secure the result they want.
But in-house counsel know their own companies’ interests. They are, after all, paid to think strategically.
They can’t just shut off access to that knowledge when they take their seat on the bench.
UPC judges will have to make a lot of decisions, and each one will make winners and losers out of various parties.
Every one of those decisions will, at least in the court’s formative years, help to shape the case law and general practice of the new court.
If in-house patent lawyers are allowed to steer that process as judges, then there will be accusations of corporate capture.
Reform needed
The code of conduct implicitly concedes this point.
“A judge should be aware that activities which are sponsored by, or that target specific industry or interest groups, as well as participation in and contributions to in-house events, whether or not remuneration is paid, create an impression of dependence or partiality of the judge,” it says.
So UPC officials acknowledge that even unpaid participation in industry events creates an impression of partiality – just wait until they find out that some of the judges work in those industries.
I’ve focused on the role of industry here, mostly because I don’t think it has received enough attention.
That’s not to say that having judges employed in private practice doesn’t present its own issues.
But the code is quite good at identifying those conflicts, such as if the judge’s firm has represented one of the parties in any matter in the last three years.
In other words, the code anticipates conflicts based on what has already happened.
But it gives no consideration at all to in-house counsel’s knowledge of corporate strategy and how UPC case law might affect their employers in the future.
The section quoted above is the only part of the code of conduct that specifically addresses the influence of industry.
Follow the logic in that paragraph and there can only be one conclusion.
The presence of in-house counsel on the bench will give the impression of dependence and partiality and it will undermine the court’s integrity.
There is, of course, an expense attached to staffing the court exclusively with full-time judges.
But given the court’s reputation and perceived integrity are at stake, it seems a price worth paying.
Is it really possible to build a fully independent justice system safeguarded against undue influence on the cheap?
There has been speculation online over whether part-time judges will have to resign in light of the rules laid down by the administrative committee.
If they do, the court might look to quickly replenish its ranks of judges with the best of the candidates who didn’t make the cut the first time around.
Waiting for resignations would be a mistake. It would be better instead to recognise that the system of part-time judges was a bad idea that should never have made it this far.
