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| The leafy premises of the Bundespatentgericht, to be shared by the Central division of the UPC in Munich |
As with the gender balance at the helm of the Praesidium, thanks to Klaus Grabinski (Germany), President of the Court of Appeal, and Florence Butin (France), President of the Court of First Instance, women's representation among the legal appointees, at 18/34, is especially noteworthy. The seven appointments to the Court of Appeal include five women, alongside all-female sections of the central division in Munich and the local division in Paris.
Of interest for those looking at the diversity of the court as a litmus test for that of the patent law profession in Europe is that the picture is rather different when it comes to the 51 technically qualified judges. There are just eight female appointees overall (of whom four hail from Germany) and none to either Biotechnology or Electricity.
The UPC comprises a Court of First Instance, a Court of Appeal and a Registry, and is based on the UPC Agreement. This has been agreed and ratified by Contracting Member States which are EU Member States.
Reviewed by Sophie Corke
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Friday, October 21, 2022
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ReplyDeleteWhilst the level of excitement seems to be growing in certain circles, I cannot help but wonder the extent to which those circles are paying attention to the views of the “average” patent applicant, and of SME applicants in particular.
There is no doubt that, for many patent holders, the UPC will achieve the precise opposite of what its proponents promised to deliver. That is, it will make patent litigation in Europe:
i) more complicated (not least by adding a new, completely independent court into the mix of national and EPO instances that will deliver decisions on the provisions of the EPC);
ii) far less predictable (with uncertainties, including over the applicable law(s) of infringement, being far too many to mention);
iii) harder to manage (in view of the astonishingly short deadlines); and
iv) far more expensive for all litigants (except perhaps those that previously would have run multiple, parallel cases in Participating Member States).
This is before one even considers uncertainties relating to whether the whole set-up is unlawful / unconstitutional (again, on grounds far too numerous to mention).
Thus, whilst I understand the excitement involved in breathing life into a new system, it strikes me that very little attention is being paid to its extremely serious shortcomings.
In this regard, whilst I can see that hands may have been tied by the limited availability of suitable candidates, the selection of so many judges that will continue their separate employment as patent litigators / attorneys does point to an immediate need for the UPC to establish very strict rules governing conflicts of interest. It also begs the question of how the UPC will handle the possibility that certain attorneys / litigators (or their firms) may seek to entice clients by “marketing” their judicial roles. Food for thought indeed.
@Concerned Observer, your warning is quite justified. Actually this has already begun, a press release has been published by an IP firm the day after the announcement, mentioning the elevation of one of their partners to the position of UPC technical judge. No time lost !
DeleteHowever this may be counter-productive for the firm in terms of attracting business, because of the high likelihood of recusal fights.
Francis, I have already seen several examples of IP firms announcing that one of their senior partners has been appointed as a technical judge for the UPC.
DeleteWhether merely reporting such a fact qualifies as "marketing" is an arguable point. However, this means that the IP firms in question issued announcements regarding judicial appointments despite the fact that it is unclear whether it was entirely ethical (or appropriate) to do so.
I agree that the appointment of active litigators as part-time judges is certain to prompt many requests for recusal of those judges. However, as illustrated by how the EBA handled the objections to members that were not excluded in G 1/21, the ability of parties to raise partiality objections relies upon the availability of comprehensive information on the relevant (prior) activities and connections of the judge(s) in question.
Of course, the IP firms that employ the part-time judges will not want to reveal such comprehensive information, not least because doing so might breach obligations of confidentiality to their (non-public) clients. There is also a risk that a consistent pattern of self-recusal of a part-time judge might reveal such "sensitive" information. I can therefore only conclude that it will be literally impossible for the part-time judges to ensure that not only are they acting impartially, but than they are seen to be doing so.
i can only but support the comment of Concerned observer.
ReplyDeleteAs far as the question of part time judges is concerned, I would like to add the following.
“Marketing” their judicial roles by part-time judges should be absolutely prohibited.
In view of the part-time participation of judges, a high number of recusals of such part-time judges is to be expected. It is thus not only necessary to provide very strict rules governing conflicts of interest, but also a mechanism by which recusal of legal and technical judges will be possible.
It is doubtful whether the provisions of Art 7(3-5) of the Statute are sufficient in these respects.
Art 7(3) deals with self-recusal or a decision of the chair of the court of first instance or the court of appeal considering that a judge should not sit or make submissions in a particular case.
Art 7(4) deals with recusals and does not say much.
Art 7(5) provides that any difficulty arising as to the application of Art 7 shall be settled by decision of the Presidium.
At least at the boards of appeal EPO there are much clearer rules as to recusal.
in any case the decision is not left to the chair or the Praesidium of the boards of appeal.
It is also worth noting that according to Art 10 of the Statute a judge can be removed from office by decision of the Praesidium without the judge being offered any means of redress, besides the fact that he can be heard (which is a bare minimum). In how far such a rule is conform to the constitution of numerous UPC contracting states remains to be seen.
In IP matters there very few countries in which part time judges are acting at least in first instance and not in appeal. One is the UK, the other one is Switzerland. Those are two countries which are not participating in the UP/UPC system.
In part of France, commercial chambers are also using lay judges, but not for matters relating to validity of infringement of IP rights.
Here again, it remains to be seen in how far the status of part-time judges is conform to the constitution of numerous UPC contracting states.
It is possible that Belgium could also accepts part-time judges, but I am not sure.
It is ironical to see that most of the RPUPC have been inspired by the British system. And the UK has withdrawn its participation. Would it not have been wiser introduce some longer time limits as short time limits increase the pressure and costs, especially for European SMEs which are meant to benefit from the UP/UPC system.