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Monday, 18 April 2016

Will there be any full-time UK Patents Court judges in the UPC?

If no UK patents judges will be in the UPC, 
this paves the way for Judge Merpel, presiding....
Like any Kat, Merpel is attuned to the slightest rustle or disturbance in the patent force.  Her whiskers have been twitching of late as she can sense some disturbance about the future membership of the judges of the Unified Patent Court.  On Friday, the Preparatory Committee announced that the UPC judicial recruitment package had been agreed with the advertisements to be published in May (click here for the announcement).  The identity and experience of the UPC judges are a key piece in the UPC framework and future success of the system.  Several months ago, Merpel assumed that the various Ministries of Justice from across Europe would be issuing decrees to their experienced patent judges to apply for the UPC posts.  To make the system a proper success, full-time experienced patent judges are what is needed, at least in the all-important initial years when procedural case law is established.

The question that has yet to be answered, as far as Merpel understands, is whether the UK's Ministry of Justice will permit the current Patents Court judges to be seconded full time to the UPC for a couple of years.  Apparently, the answer is not forthcoming or as straightforward as it is hoped.  Whatever the status or reasons, such a result would be that without the benefit of the UK's experienced full-time patent judges, the UPC will be weakened.

Europe benefits from a collection of experienced and highly qualified patent judges.  The UK's patent judges are some of the most experienced, deciding a wide range of cases -  from the complex, high-value patent disputes between the world's Goliaths in the Patents Court, to efficiently managing smaller patent cases between SMEs in the Intellectual Property and Enterprise Court (IPEC), where the case is front-loaded, evidence limited and time to trial generally shorter.  If IPEC sounds curiously similar to the procedure envisaged by the UPC Agreement and Rules of Procedure, that is no coincidence.  In 2009, the Working Party of the IP Court Users' Committee was tasked with proposing a new procedure for IPEC (or the PCC, as it then was).  The procedure was modelled after what was hoped the procedure would inevitably look like in the UPC.  Fast-forward to 2016 and, with the help of some talented judges, the IPEC has become an acclaimed success in providing litigants with a forum whereby they can obtain high quality patent decisions in an efficient and cost-effective court.  Also the aims of the UPC...

Given their experience, it is no surprise that the UK's patent judges are kept very busy.  In 2014, there were 72 European and UK patent cases commenced in the Patents Court and IPEC concerning 106 patents.  If adopting German approach to counting cases (where each claim and counterclaim for infringement or revocation is counted), then the number rockets to 103 cases concerning European Patents.  You can read more about these statistics in the UK IPO's recently published report here.

It would be misfortunate to squander this available experience, especially in the critical early days of the UPC.  The success of the UPC will be determined by the quality of its decisions and, thus, the experience of its judges.  Without experienced judges from one of Europe's widely recognised and frequently used patent jurisdictions, the strength and attraction of the UPC as a competitive venue for European patent litigation will be depleted.  A subsidiary issue is that, without the participation of the UK's Patents Court judges, the attraction for litigants to use the UK's local division to commence patent infringement actions would also be weakened (thus curtailing the positive benefit to UK's economy).  Such a state of affairs seems completely nonsensical given how hard the UK Government fought to secure a seat of the Central Division in London for exactly the same reasons (i.e., beneficial to the UK economy, key role in the stake and success of the UPC, etc etc etc).

Merpel hopes that whatever the current position or perceived reluctance from the UK, it will be short-lived.  It is vital, especially in the current climate, that the UK plays a vital role in helping to shape the future European patent litigation and innovation.

14 comments:

Anonymous said...

Highly unlikely. Even if the UK is still around for the UPC and the UPC does in fact take off and this were to happen -unfortunately,the UK, France, Germany and Italy will be outnumbered by the non patent nations on the UPC. So you can start complaining now about the quality of the judgments to come like you do about the CJEU. In fact, the CJEU never pretended to be nor indeed was required to be a specialist court for patents but the criticism meted out to them about not getting it right whenever they dealt with the SPC Regulation was enormous -although on the other hand they always had a good stab at the Biotech Directive whenever they dealt with it.

Anonymous said...

If there's a Brexit, game over.

Confused cat said...

If there are no UK judges in the UPC's first intake, what will the UPC do about Articles 5(3) and 7(3) of Regulation 1257/2012, as applied to EPUEs filed by UK-based applicants?

That is, who will explain to the other judges how to interpret the national law of the UK that is “applied to European patents with unitary effect”?

Given that the UK has (seemingly unlike almost all other countries ratifying the UPC Agreement) gone to the trouble to specifically create a national law applicable to EPUEs, it would be a terrible waste if there were no UPC judges who were qualified to interpret that law.

Presumably, interpretation of the relevant national law is an issue upon which (due to Art. 5(3) of the UP Reg) questions could be referred to the CJEU. Could be interesting seeing how the CJEU handles that one!

Anonymous said...

Its my understanding that the biggest problem is that a salary of EURO 11,000 per month is a deterrent. Very few in the UK seem to be interested in such a paltry remuneration, whereas in Germany they apparently already have over 1000 applicants!!

Anonymous said...

An old friend for dinner answers…

Will there be any full-time UK Patents Court judges in the UPC? Forget it, Judges. It’s the EPO. By the way pay no attention to that man behind the curtain!

Anonymous said...

At a conference in Strasbourg on the proposed UPC - memorable for having started the day that Icelandic volcano blew - the subject of judge's qualifications for this role came up. It was estimated that the number of active judges who met the requirements was about - 20. Perhaps 50 at a push. Not official of course, but not very optimistic. And apparently not much improved upon since.

Anonymous said...

"Valid and Infringed".

I could do this job in my sleep. Where do I apply?

Anonymous said...

1000 applicants from Germany? Twaddle as the application process hasn't started yet (read the article).

Kant said...

Anon, anon was probably referring to this campaign:
https://www.unified-patent-court.org/news/preparatory-committee-launches-expression-interests-candidate-judges

Anonymous said...

Ah yes, but some have been preparing for this for some time (years in some cases)-sorting out their references,sending CVs to key persons, hobnobbing with civil servants from their MS,making sure they write articles on patents etc.

And don't sniff at the 11,000 EUR tax free which does not include the massive list of benefits paid on top. For example, EU civil servants get an education allowance for their kids until age 26 (negotiated by the Germans over 50 years ago as German kids stay in higher education until then easily and so do British kids increasingly except there are increasingly no Brits left in the system and the Brits wanted to get rid of this).

Anonymous said...

the key issue here is languages, what French or German language UK judges speak??? will them be able to take a case in German? or French? will a month or two in the Budapest training centre suffice for acquiring French and German language skills ?? the perfect candidates for these judge posts are members of the EPO Boards, however these people have a salary much higher than the 11.000 Euros net per month, so who will apply? I agree with some comments, above, the non Patent important UPC member states...
11.000 euros is half of the salary of an ECJ judge and 3 to 5 thousand euros less than an average member of the Boards of Appeal, who will leave aside its house, the children and the spouse job for this salary and for a non-permanent job of 6 years?.

Judges are human beings too said...

Hire a couple of high profile patent judges from each of the main countries, and be sure they will fight for years trying to impose their own national practices and legal traditions in respect of hundreds of issues from the formal requirements to be met by a party´s request, to the admissibility of new arguments or the way orders should be formulated and decisions drafted. Less prominent candidates might be more prone to finding reasonable compromises.

Anonymous said...

The numbers of judges initially required is probably relatively low. Given the number of proposed local divisions and allowing a bit of flexibility probably around 50 legally qualified judges are required almost all of whom would only be acting on a part time basis. However, if the response to the expressions of interest are representative, that is just as well since only 171 of those who expressed an interest had the qualifications and experience in patent litigation to be a legally qualified UPC judge without additional training.

At minimum, each local division will need at least one local judge, with the local divisions in UK, Germany, France, Italy and the Netherlands having two local judges. So there will necessarily be a spread of nationalities and at least 2 UK judges.

You would have to ask the existing UK patent judges whether or not they intend to apply but given the political capital that has been invested in the project, it is unlikely that the MOJ would prevent UK judges from serving on the court on a part-time basis.

A SME said...

Stop whining! Whatever the number of the judges - from the UK or wherever - the UPC will be a success.

Brace for it.

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