The first of March 2023 seems to be a likely date the Unified Patent Court will open its doors.
This became clear yesterday during the Unitary Patent Package Conference in Amsterdam. On the same day, the UPC Administrative Committee announced on its website that ‘the timing of the start of operations of the Court can reasonably be expected to occur in early 2023’. During the conference March was repeatedly mentioned as a possible starting moment for the UPC.
Johannes Karcher, Vice Chairman of the Administrative Committee of the Unified Patent Court and Coordinator for Legal Affairs, announced a new roadmap will soon be published on the UPC’s website, with the latest information about the timing of the appointment of judges, their training, other preparations, the start of the sunrise period leading up to the entry into force of the UPCA.
The recruitment of judges is well underway, Karcher said. After interviews with about 200 candidates between March and May in Luxemburg, Paris and Munich, the Advisory Committee drew up a list with most suitable candidates comprising twice the number of posts. It was presented to the Administrative Committee on 8 July 2022. A total of around 40 legally qualified judges and 50 technically qualified judges will be selected, in the beginning mostly part-time. Once a final list is adopted, the candidates will be offered employment and, after formalities such as a health test, likely be appointed in September. As a next step, a president of the Court of First instance and of the Court of Appeal will be elected, the presidium of the UPC formed and the registrars appointed. The judges will receive comprehensive training, including the electronic case management system (CMS) and the Rules of Procedure.
Rules of Procedure
An important moment during the meeting of 8 July was the adoption of the final version of the Rules of Procedure, just weeks after getting the consent of the European Commission (22 June 2022). They have not yet been published. As to a consolidated version of the Rules of Procedure, following legal scrubbing, they will be published during the course of the summer, before their entry into force on 1 September 2022’, can be read on the UPC’s website.
At the Amsterdam conference, several changes of the RoP were explained, such as the introduction of the possibility of full oral hearings by videoconference (Rule 104, 112), a lesson learnt from the covid pandemic. There is a new Rule 5A, providing for an application to remove an unauthorised application to opt out or unauthorised withdrawal of an opt-out.
Opting out of the jurisdiction of the UPC sounds like a simple procedure, but this is not always the case, several experts at the conference warned. For instance, an opt-out must be signed by all proprietors in up to 38 EPC states in order to be valid. This must be carefully checked, as the UPC doesn’t do this and a mistakes may only come to the surface when a patent is litigated.
Most significant and much debated in the final version of the Rules of Procedure were the changes in Rules 262 and 262A, concerning public access to the register. Article 262.1 now reads: ‘(a) Decisions and orders made by the Court shall be published. (b) written pleadings and evidence lodged at the court and recorded by the Registry, shall be available to the public upon reasoned request to the Registry. The decision is taken by the judge rapporteur after consulting the parties.’ Under conditions which are detailed in the articles, a party may request that information is kept confidential or only a restricted number of people will be allowed to see it.
Milan the new London?
At the UPP Conference, there was also interesting news about the life sciences branch of the UPC’s central division, which will not be established in London due to the Brexit and the UK’s departure from the UP project.
Milan now seems to be a serious candidate for housing a section of the central division, according to an observer who is close to the process. He said the city of The Hague has lobbied hard to secure the division over the last year. But apparently, in a meeting of Dutch prime minister Mark Rutte with his Mario Draghi earlier this year, Rutte unexpectedly told his Italian colleague that the Dutch would give up their aspirations, which left Milan – which has claimed the division since long – as a favorite candidate.
What consequences this will have is not entirely clear. The UPC’s Administrative Committee has so far only indicated that ‘London cases’ can be divided temporarily between the central divisions in Munich and Paris, as long as there is no agreement about the future of the London division.
The advantages of the UPC as a ‘one stop shop’ were stressed several times during the conference, but it is clear that the court will have to gain confidence among (parts of) the industry. However, don’t think the Unified Patent Court will have little work once it opens its doors, one patent litigator predicted. He expects a ‘midnight avalanche of cases’, the moment the UPC starts functioning. And indicated he is working on some of these himself.
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On Rule 5A: who is eligible to lodge an application to remove an unauthorised opt-out (or unauthorised withdrawal of opt-out)? And in what circumstances will that be possible? Actions purely concerning the validity of opt-outs and their withdrawals are not among the list of exclusive competencies provided by Article 32 UPCA. On what authority can the validity of an opt-out (or its withdrawal) be reassessed once it has been registered?
Why is the consent of proprietors in all 38 EPC countries required for an opt-out? What business is it of the proprietors in countries that will not (and will never be) part of the UPC system? In cases where all the proprietors are subsidiaries of the same parent company, or within the same group of companies, then getting this consent might not be too difficult, but in many cases there might not be such a relationship. Why do the UPC-country proprietors need to go chasing after the non-UPC country proprietors for their consent in that type of situation? This is just another bureaucratic headache for no apparent reason or benefit.
Forcing the proprietors in all EPC states to opt-out is a non necessary hurdle. It makes matters unnecessarily complicated.
Opt out should just be limited to proprietors in UPC contracting states.
Even after the provisional period, the competence of the UPC will be limited to contracting states and should not extent to all other EPC contracting states!
Or does the UPC intend that it orders also apply to non UPC contracting states?
I am looking forward to battles relating to enforcement of such judgments.
Kindly consider ARTICLE 31 UPC Agreement on International jurisdiction:
“The international jurisdiction of the Court shall be established in accordance with Regulation (EU) No 1215/2012 or, where applicable, on the basis of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Lugano Convention).”
The jurisdiction of the UPC is thus whatever EU regulation 1215/2012 and the Lugano Convention say about its jurisdiction. So, not simply the UPC states.
“such as the introduction of the possibility of full oral hearings by videoconference”
This is contrary to the decision of the French Constitutional Court, as mentioned by some observer in the EPO VICO case.
The EPC and the UPCA should not conform to the French Constitution, should them?
Nothing against OP by ViCo, but the parties should be left the choices of the form of the OP.
Exceptions could be provided in case of a pandemic, but strictly limited to exceptional circumstances.
And the deciding body should sit together and not be scattered around contracting states, cf. Art 128(a?)ZPO.
The limitation of the French constitutional court to hearings by ViCo relates to criminal proceedings
I am still waiting for a sound legal basis for the “provisional” allocation of life science files to Paris and Munich and later to possibly Milan.
Let’s see how decisions taken in Paris or Milan in life sciences will be enforced.
I am still waiting for sound legal reasons allowing the “provisional” transfer to files in life sciences to Paris and/or Munich, and the later allocation to Milan.
A first year law student would earn a solid bashing should he come up up with such a ridiculous proposal.
How will a decision taken during this provisional allocation be enforced in the UPC contracting states?
Furthermore, even the provisional application of the UPC agreement is unlawful, since it cannot start without the ratification of the UK, so everything which has beed decided now (e.g. Rules of Procedure), are unlawful
So, if I understand correctly, the sunrise period will likely start in September 2022 but the rules governing the filing of opt-outs during that period have not yet been published.
This is really not good enough, especially as there are (reportedly) significant differences to the previous draft of the relevant rules.
A promise to publish the rules “during the course of the summer” also hints at a distinct lack of urgency and ambition. This is because that promise could mean that the public will be provided with only a small number of days, and perhaps even only a handful of hours, to familiarise themselves with the new rules in advance of their entry into force (and/or before the start of the sunrise period).
The rules governing an important new court system really ought to be published many months before the system goes “live”. Indeed, it would be very simple to ensure that this happens for the UPC, by delaying the deposit of Germany’s instrument of ratification by a few more months. But that would be a common sense measure that places the interests of the wider public ahead of the interests of those set to benefit (financially) from the start of operations at the UPC … and so I won’t hold my breath waiting for that to happen.
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