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Friday, 20 September 2013

Who wants to be a UPC judge? Shout now if you do!

Over on the IPKat's favourite website at the moment, that of the Unified Patent Court, we find the news that Preparatory Committee is launching Expression of Interests from Candidate Judges.  So basically this means that if you want to be a UPC judge, now is the time to put forward your name.  The closing date for this call for interest is 15 NOVEMBER 2013.  You can see the announcement, with links to the "Call for expression of interest" and "Rules of pre-selection procedure" here.

This Kat has been scrutinising the provisions for what you can do at the same time as be a UPC judge.  The key bit seems to be in Article 17 of the UPC Agreement (you can find it heresorry not the Statute as post originally said - apologies).

Basically, a legally qualified judge and full-time technically qualified judge can be a national judge but not much else, unless an exception is granted by the administrative committee.  Part-time technically qualified judges can have other "functions" provided that there is no conflict of interest.

Otherwise, the requirements to be a UPC judge seem to be:

they must be nationals of a Contracting Member States
they must have a good command of at least one official language of the European Patent Office (DE/EN/FR)
they must be able to ensure the highest standards of competence and shall have proven experience in the field of patent litigation

Candidates for legally qualified judge position must possess the qualifications required for appointment to judicial offices in a Contracting Member State;
Candidates for technically qualified judge position must have a university degree and proven expertise in a field of technology. They must also have proven knowledge of civil law and procedure relevant in patent ligation. 

But this is not what it seems, because the "expression of interest" document notes that:
Candidates’ attention is drawn to the fact that according to Article 2 (3) of the Statute of the UPC, experience with patent litigation which has to be proven for the appointment may be acquired by the training framework of the UPC. 

So you can satisfy the patent litigation experience requirement by undergoing the UPC training which is to be provided.

So, if you are bored of your job and fancy a change of scenery, off you go!

But what will the salary be?  Article 12 of the UPC Statute says it shall be set by the Administrative Committee, but no-one has yet told the IPKat how much it will be.  We need to be told!  Does any of the IPKat's dear readers out there know?  Merpel heard a whisper that by UK standards it will not be high, but has no independent verification of this.


Anonymous said...

Candidates may be interested in more information as to where their new role will require them to work - the training appears to be based in Bucharest.

Roufousse T. Fairfly said...

National Judges only?

Are EPO BoA members specifically excluded?

Darren Smyth said...

Roufousse - what Article 17 of the Agreement (not Statute as I originally wrote - apologies for incorrect reference) says is "exercise of the office of judges shall not exclude the exercise of other judicial functions at national level" so EPO BoA members would apparently require individual dispensation.

Darren Smyth said...

And of course there is the question of whether the EPO would be happy for its BoA members to be part time at the EPO while they served as judges of the UPC. I don't know the answer to that.

Gibus said...

@Roufousse EPO BoA members can be judges at the UPC.

This was explicitly forbidden in a previous revision of the UPC (when the agreement was called UPLS, the one that has been rejected by CJEU Opinion 1/09 on March 2011).

And it was an amendment (Am. 6, see here with links), voted by the ITRE Committee of the European Parliament:

3a. Suggests that Members of boards of appeal of a national patent office or of the EPO shall not be eligible to serve as a judge of the court until expiry of a 6-months period after the termination of their previous function so as to guarantee their neutrality;

But ITRE was only giving a mere opinion, this amendment was eventually not accepted, and even not voted, by JURI (responsible committee) and by the plenary.

So you can expect EPO BoA members to apply for a seat at the UPC.

By the way it would be interesting if replies for this "Call for expression of interest" were published, or at least, name of people who have replied.

(not that I have any hope for this transparency to happens)

Gibus said...


I don't have the answer neither to the question of the EPO being happy for its BoA members to be part time at the EPO while they served as judges of the UPC.

Nevertheless, it cannot be ignored that the Unitary Patent/UPC has been suited for the EPO. The whole point in this package has been to leave ordinary courts (national courts and CJEU) out of these patents matters. Enforcement of patents in courts was the only point out of the realm of the EPO over the European patent system. So, yes, you can expect EPO being happy by UPC being filed with EPO BoA members.

Tim said...

Art 149a(2)(a) EPC, the AC can allow BoA members to serve on a "European patent court".

Anonymous said...

Wow, I never noticed Art. 149a(2) EPC before.

Regarding the salary, the following is from a drafty study by the EU (first hit when you google draft study upc financing). Note that this is just a working assumption for the purpose of that study and "obviously without prejudice to any future decision of the Administrative Committee relating to judges' remuneration".

"(...) it is tentatively proposed, for the purposes of the present study, to work with the following remuneration scheme
o the basic remuneration of the judges of the UPC-CFI would be set at 140 000€/year (full-time); an internal tax [17% or 23 800€] would be deducted from the basic remuneration (for pension and health insurance purposes)
o the basic remuneration would be supplemented by an expatriation allowance [30% of basic salary or 36 000€] for those judges who take up duty at a division not located in the place where they were previously in office

Under such a scheme, the yearly remuneration of a CFI judge having to move abroad would amount to 152 200€ while a CFI judge not having to move abroad would earn 116 200€.

As far as the President of the Court of First Instance is concerned, his functions – "direct the judicial activities and the administration of the Court of First Instance" – warrant a higher basic remuneration of 160 000€/year. Internal tax would be deducted and expatriation allowance added where appropriate.

As the judges will take turns as presiding judge, this function does not warrant a higher remuneration.

An aspect not pursued further at this stage is whether a special scheme for the remuneration of technically qualified judges should be provided for: other remuneration schemes than the one proposed above could be devised, for instance a lump sum per case instead of a fixed remuneration. A separate inquiry into the number of technically qualified judges needed to cover all fields of technology and the functioning and mobility of the Pool of judges would be required to further develop this aspect."

For the Court of Appeal, replace € 140.000 by € 160.000.

Looking at the table in Section 1, it seems UK judges probably will not apply. (Bulgarian judges on the other hand...)

Anonymous said...

Hmmm, assuming the salaries of national judges in table V.1 are before tax, which seems likely, UK judges might still be intested.

I also found this older study which estimated the average annual gross salary of CFI judges at € 225.000 and of CoA judges at € 250.000, which seems considerably higher but might include employer contributions to pension schemes etc. The "unit cost" in the draft study is probably way too low, unless the usual EU-type allowances are not foreseen.

Anonymous said...

I heard someone say that it should be not less than the members of the BoA at the EPO, which makes sense as the new judges will have to examine BoA's decisions

Anonymous said...

What does "proven expertise in a field of technology" mean with reference to technically qualified judges? Is a science degree and a career as a patent attorney enough or does it mean more than that?

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