The Unified Patent Court has announced a ‘major milestone’ in the implementation of the Case Management System (CMS).

Starting mid or end of September, the CMS login process will be based on a strong authentication scheme. According to a report on the UPC’s website, ‘an electronic IDentification certificate (compliant with EU Regulation No. 910/2014, also called “eIDAS”) will be required instead of the current account + password system. The new eIDAS-compliant authentication scheme will provide the highest level of security in accessing the CMS, while the use of a qualified electronic signature will be required to electronically sign legal UPC documents.”

The UPC points out that a physical secure device – a smart card or USB token – will be needed. This must be acquired from one of the authorized providers, which can be found on the EU Trust Services portal.

A specific enrollment procedure will be available, as well as a test page in order to check the authentication certificate.

The preparations for the Unified Patent Court, for which an opening date of March 2023 has regularly been mentioned, are continuing. Last month, the UPC published a consolidated English version of  the Rules of Procedure on its website. A consolidated version in French and German should become available before the Rules’ entry into force on 1 September.

The recruitment of UPC judges is also on track. According to JUVE Patent, several candidates ‘have received letters confirming their ascension to the court’s judicial system. Unsuccessful candidates are also being informed.’

German challenge

And finally some news which broke earlier this summer: the German Federal Constitutional Court has formally dismissed and closed the second round of constitutional complaints against the UPC system, which had been lodged by Düsseldorf lawyer Björn Ingve Stjerna and, probably, the Foundation for a Free Information Infrastructure (FFII), its president Benjamin Henrion and un unknown company. It was a formality after the FCC had already rejected two applications for an interim injunction against the UPCA ratification bills last year.


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Kluwer IP Law
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11 comments

  1. How will this work for non-EU representatives? Why not add EPO smart cards as a possible authentication device?

    1. Since representatives will primarily be solicitors, why should the UPC concern itself too much with EPAs who have the opportunity to obtain a proper qualified signature card through the indicated commercial channels.

    2. Indeed … although the problem there is that EPO cards are not issued by an EU-recognised provider.

      The “detailed” information provided by the UPC Prep Committee perhaps provides a ray of hope:
      “qualified electronic certificates do require a strong identification process. Such process USUALLY imposes the physical presence of the requestor during the identification. However, some providers are certified to use “online” identification means (like video conferencing) but for a limited choice of qualified signature creation device. PROVIDING such vendors are certified and recognized by competent national authorities”.

      The EU Trust Services Dashboard does not provide a specific search option for vendors certified for “remote” issuance of qualified signature creation devices. It would therefore have been nice if the Prep Committee could have pointed us towards some qualified vendors (assuming that there are any).

      Looks like we will all need to do a lot of research … and possibly even make trips to the EU just in order to obtain a device loaded with the relevant certificates. Oh joy!

      1. @Concerned – my understanding is that the identification process is the procedure to be followed to obtain the necessary eID card, where the identify of the requester needs to be established through a physical check with supporting documentation such as a passport or national ID card.

        1. Well, that begs the question of whether just the supporting documents need to be seen “in person” by the eID card provider, or whether the requester needs to be seen in person too.

          Those possessing the necessary qualifications to act before the UPC (at least by filing opt-outs) will come from most, if not all, EPC Contracting States. Many of those Contracting States will not have any providers of suitable eID cards. From what little I have learned so far, it seems likely that countries lacking such providers will also include a number of EU Member States … and possibly even Member States that are set to participate in the UPC. The few providers of suitable eID cards are therefore likely to be overwhelmed in the short term.

          Bearing all of this in mind, how is all of this supposed to work out in the limited time available, and without forcing thousands of individual attorneys to make long journeys just to secure the ability to file opt-outs?

          1. The link provided by the UPC seems to give details of eID suppliers in most, if not all, UPC contracting states. I was able to apply for a suitable card on Tuesday using one of the links provided. I just don’t see a problem here.

    3. Well, in my experience the EPO does not concern itself with such mundane tasks as issuing correct signature cards… I do know of cases where an Umlaut in the represantative’s name was replaced with the “normal” letter or where only one of the given names was listed (the representative used the other one in correspondence, of course…).
      So maybe the UPC should refrain from allowing EPO signature cards, it may save a lot of work for all parties.

  2. “It was a formality after the FCC had already rejected two applications for an interim injunction against the UPCA ratification bills last year.”

    The FCC did not want to address the compatibility of the UPCA with EU law, using the excuse that they only ask a preliminary question to the CJEU only when fundamental rights are involved.

    Now the question is whether it opens the possibility for one of the complainant to appeal this decision at the CJEU.

    Opinion 1/09 was not followed, and the UPC still deprive National Courts to ask questions about EU law in the field concerned (art 267 TFEU).

    1. A most interesting remark.

      Is the recent rejection of the constitutional complaints on the merits really a mere “formality”? Or does it probably pave the way to a completely new legal playground which was barred before?

  3. It seems to me that the “UPC implementation team” has some serious questions to answer.

    Firstly, when was the decision taken to require eIDAS strong authentication just to log in to the CMS?

    Secondly, why are we only being informed of this decision within days of the new system going live?

    Thirdly, why provide so few technical details regarding the requirements for the eID cards?

    Fourthly, without providing strict guidelines on the requirements that the eID cards should meet, how is the CMS supposed to cope with the inevitable variety of different solutions that users will adopt?

    Finally, why did the UPC team not make arrangements directly with providers of suitable eID cards, so that those providers know precisely what is required, and so that the UPC team can act as a bridge between them and the attorneys that will require the eID cards?

    There are occasions when institutions take decisions that make things simple and user-friendly. This is most definitely not one of those occasions.

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