The Unified Patent Court will lead to a concentration of forces in the European patent litigation sector. That is the expectation of Richard Ebbink, partner at Brinkhof, and Georg Rauh, partner at Vossius. In September, their firms announced they would start cooperating in a new brand, Vossius and Brinkhof UPC Litigators. Kluwer IP Law interviewed Ebbink and Rauh.
Why was this joint new UPC brand created?
‘As a European patent court, the UPC requires international teams of lawyers and patent attorneys. Together the Vossius and Brinkhof patent teams have the international experience, the technological breadth, the language skills, the energy and size for operating in the new system. Together we will be close to 100 professionals (between 30 and 35 litigators and between 60 and 65 patent-attorneys).’
The start of the Unitary Patent system and the UPC has been delayed for many years. When was it that the Brinkhof/Vossius initiative started?
‘We started talking many years ago. When Brexit and constitutional complaints seemed to bring UPC developments to a standstill, we did not give up. When it became clear, relatively recently, that the UPC would become a reality after all, for us the natural thing to do was to formalise our UPC co-operation, create our own brand and go public.’
What kind of initiatives have you developed so far to make your cooperation successful?
‘We exchange information, we regularly meet (both virtual and physical), we have internal UPC webinars, and we have mock trials. Next to that, we are jointly meeting with clients worldwide, of course.’
Do you expect the UPC to get many cases soon? Or will the patent sector be reluctant to rely on this brand new court, whose jurisprudence has yet to develop?
‘We think the UPC will be a success. We have encountered very little scepticism with our clients. The system will cover a market the size of the US market, with rules tailored to patent proceedings, and with courts that are set up to deliver timely decisions and that are staffed with experienced judges used to granting injunctions in case of infringement.’
Have you been in contact with your clients about the UPC, particularly the issue of (not) opting out? What criteria are important in your advice to them?
‘Of course we have. There are however no general rules for opting-out. Much if not all will depend on the circumstances. If your company is driven by innovation, those circumstances will in principle point against opting-out.’
Has the list of appointed judges increased your confidence in the court?
‘Very much so. The list almost exclusively consists of experienced to very experienced judges. The list also confirms that our decision to create a German-Dutch co-operation has been the right decision: Of the seven legally qualified Appeal Judges, two are Dutch and two are German. Also, the predominant number of First Instance Court Judges both legal and technical are German or Dutch. Moreover, we think UPC litigation will be more intense in the North-West of Europe. That is where we are located.’
What will change for litigation firms, now that the UPC starts functioning soon?
‘With the UPC creating an additional layer of enforcement options for European Patents over the current national systems, litigation strategies will become even more complex than nowadays. Thus, litigation law firms will need to develop new and creative strategies on how to best enforce smaller and larger patent portfolios of their clients.
Also, the speedy procedures at the UPC with completely new rules and no established case law will require litigation teams to be very effective. We think that for most cases, larger teams will be required to cope with the challenging requirements than for the usual national litigation case. In preparation of filing complaints with the new system, firms will of course have to closely study the new Rules of Procedure as well as gain experience in filing their briefs electronically.’
Are the quick UPC procedures positive? For both plaintiffs and defendants?
‘They certainly are. As is usually the case, that is better for plaintiffs than for defendants. Quick rulings are what European business may expect and what the UPC procedure was made for.’
It seems there have been issues with the new, secure login procedure for the UPC’s CMS. Have you experienced this as well?
‘We are aware of discussions about the authentication required to enter the electronic filing system (CMS). We have no doubt that the relevant technology will be on the side of the users of the system.’
Can we expect a wider reshuffle of the activities of European patent litigation firms due to the Unitary Patent system?
‘We think further movement in the market for patent litigators, further concentration of forces is likely. If not sooner, then later.’
Will smaller firms be able to cope?
‘They will likely be fine with handling the smaller cases, whereas it has to be seen how many small cases the new court will be able to attract, or whether those cases will rather stay on the national level. In any event, smaller firms will have trouble staffing big cases and staffing international cases. The timelines in the Rules of Procedure are relatively short. It will take manpower and international litigation experience to meet them. Vossius & Brinkhof have that size and experience, both from the legal as well as the technical side.’
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So, if I understand these comments correctly, they seem to acknowledge that the very design of the UPC (and its rules) inherently favours plaintiffs with deep pockets and larger litigation firms.
Remind me: from where did the individuals hail that designed the UPC and its rules? My recollection is that they came from larger litigation firms that represent plaintiffs with deep pockets.
If the very design of the UPC is the product of blatant conflicts of interest, what hope is there for an acceptable resolution to the numerous (and thorny) conflicts of interest that will inevitably arise from the appointment of a very large number of active litigators as part-time judges?
“conflicts of interest that will inevitably arise from the appointment of a very large number of active litigators as part-time judges”
The Rules in UPCA are broken, part time judges should not receive any side salary, ECHR sees it as threat to the independence of judges in Grosam Vs Czech Republic case (a violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights):
“The Court found that the disciplinary chamber had not been an “independent and impartial tribunal”
because in particular the process for selection of lay assessors had not been transparent and their
independence could not have been assured, and the tribunal as a whole had not been objectively
impartial as some of the assessors had been Mr Grosam’s direct competitors.”
The ECHR mention side salaries as threat to the independence of the judges:
“(iii) The existence of guarantees against outside pressure
134. As concerns the existence of guarantees against outside pressure, the Court observes that two-thirds of the chamber’s members, the lay assessors, worked and received their salaries outside, which inevitably involved their material, hierarchical and administrative dependence on their primary employers and thereby could endangered both their independence and impartiality (see Oleksandr Volkov, cited above, § 113).”
“smaller firms will have trouble staffing big cases and staffing international cases. The timelines in the Rules of Procedure are relatively short. It will take manpower and international litigation experience to meet them.”
Not SME friendly.
Is it at all a surprise that the design of the UPC (and its rules) inherently favours plaintiffs with deep pockets and larger litigation firms?
It has been done with this in mind!
I have not heard for a long time the fallacy stemming from staunch supporters of the UPC that it has been done in order to help SMEs. SMEs were a nice fig leaf to hide behind and make the parliaments ratify a treaty which they did not understand the faintest thing about.
SMEs will be a prime target for big firms as they know very well that they will not have the financial resources to fight against the majors. As long as the fee for a request for nullity will be twice that for infringement this imbalance will remain. It is a scandal on its own.
Arbitration chambers are foreseen in Lisbon and Ljubljana. I wonder who will be the members of those arbitration chambers. Most probably lawyers coming from the big lawyers firms having a deep finger in the pie.
The amendment of the opt-out rules has the clear aim of forcing lots of patentees to stay in the UPC! More fees for all those firms.
The whole UPC is a disgrace!
This disgrace has been magnified by the designation of technical judges coming from internationally acting large industries and lawyers firms.
What about London? What about the (withdrawn) ratification of the UK needed for the current phase?
It is to be expected that the number of recusals of part-time judges will be rather high.
There is no proper mechanism of recusal like at the EPO.
Art 7(2,d) of the statute provides that a judge cannot have a personal or financial interest in the case or in relation to one of the parties; or according to Art 7(2,e) cannot be related to one of the parties or the representatives of the parties by family ties.
What is missing is a clear statement according to which a part-time technical judge should not be working outside its duties at the UPC for a firm of representatives acting for one of the parties, or at an industrial firm acting in the field of the case dealt with before the UPC.
It could be argued under Art 7(2,d) that in such a case a technical judge could have a personal or financial interest as he is normally working for this representative’s firm or a corresponding industrial firm.
Recusal is possible under Art 7(4) of the statute. Art 7(5) provides that “Any difficulty arising as to the application of this Article shall be settled by decision of the Presidium, in accordance with the Rules of Procedure. The judge concerned shall be heard but shall not take part in the deliberations”.
According to R 346(1) – Application of Article 7 of the Statute – it is the presiding judge of the local or regional division to which the judge is allocated or, if the action is pending before the seat of the central division or one of its sections, the respective presiding judge shall, after hearing the judge concerned, who will decide whether the objection is admissible having regard to Article 7(2) of the Statute.
R 346(2) provides: “If the objection is admissible, the respective presiding judge shall refer the action to the Presidium which shall hear the judge concerned and shall decide whether the objection shall stand or not”.
This is by no means a guarantee of impartiality as a decision to the admissibility of the complaint is taken by single person. By declaring the complaint not admissible, it can be nipped in the bud.
Such an admissibility test of the complaint is not foreseen at the EPO. At the EPO, if only one judge is considered prejudiced by a party, this judge is replaced by an alternate and the board decides in the amended composition if the objection is justified. If the whole board is considered prejudiced, a complete new alternate board will decide.
As the aim is to deal in first instance with a case within 12 months, it is doubtful that this time limit can be held in case of a recusal.
The temptation might be high to declare ab initio the complaint not admissible.
Technical judges should be, like in the Netherlands, retired representatives and should also not keep ties with their previous firm in form of a consultancy. The same should apply to technical judges having worked in industrial firms.
I have already spoken about the possibility for a judge to be removed from office without any direct means of redress, cf. Art 10 of the statute. No need to dwell on it.
Dear Patent robot,
London? Do you see a problem with London?
According to the staunch supporters of the UPC you must be totally mistaken.
There is no problem whatsoever!
I do however wonder how a decision in the life science area taken in Paris or Munich will be enforceable, even in a UPC member state, not to say in a non-UPC member state.
It is amazing to see learned legal specialists, like judges and lawyers, having hired at the UPC with this Damocles sword hanging over them.
They might have been given the insurance that there is no problem, but it would be interesting to known how it has been solved.
The way of solving the problem uttered up to now, i.e. provisional transfer etc…, dramatically fail to convince. Even a benevolent interpretation of the VCLT does not allow to consider this solution legal.
If challenged, the UPC (and its supporters) will likely come up with some BS excuse or other. For now, they appear to be keeping their powder dry, so as not to narrow their options. They already have enough egg on their face regarding their flip-flopping arguments on whether non-EU Member States can participate in a unified court, for which the “expert” views were as follows.
ECPC (pre-CJEU opinion): “yes”.
UPC (pre-Brexit): “no”
UPC (post-Brexit, pre-UK withdrawal): “yes”
UPC (post-UK withdrawal): “no”
The difficulties of dealing with the London branch of the central division should not be underestimated. This is not least because the Participating Member States have clearly failed to reach an agreement on a new location for that branch. However, in the end, I doubt that even this astoundingly blatant breach of the rule of law will count for much. This is because there is political will behind the UPC, and where there is political will, there is a way.
If the title of this blog post proves to be an accurate prediction, I wonder how litigants will view such an outcome.
For those (relatively few) litigants that will want or need judgements that are directly enforceable in multiple jurisdictions, I guess that they might welcome the ability to reduce the number of parallel actions required. However, even they might not be happy with the reduction of competition (and consequent increases in costs) in the market for patent litigation services.
On the other hand, those litigants that currently have little interest in judgements covering multiple jurisdictions are likely to view the advent of the UPC as an entirely negative development … as it will result in reduced choice and increased complexity and costs for achieving the same result that a national court would previously have delivered.
In this respect, one could certainly view the UPC as being a court designed to service the interests of the few, and not the many.
Dear Concerned observer
There might be a political will for the UPC, but this cannot avoid a loosing party querying the legal status of the UPC and try to oppose an enforcement on such a basis in front of a national court.
I have just been watching today’s Brussels conference and the white elephant of the London Section has never even been hinted at.
One thing which has been noticed is the possible conflict of interest of part-time judge, and a code of conduct might come in due time.
There was a desperate effort to show that the UPC is good for SMEs. I could not be convinced.
It was noticeable that two out of three panellists heading SMEs came from Spain. That CZ and PL do not want to ratify was not mentioned.
I fully support your view that the UPC is a court designed to service the interests of the few, and not the many, and certainly not the SMEs.
It is not today’s presence of representatives of some confederation of SMEs which will change it.
Today’s conference confirmed it, especially the intervention of the chairman of Business Europe.
Europe has lived happily with the exhaustion of the patentee’s right and the number of true transnational litigations do not warrant such a monstrous thing as the EPC.
The designated judges present insisted on the independence with vis-à-vis decisions on of the EPO’s BA, but they would take them into account. I am curious to see what will actually happen. Let’s wait for a decision on Art 123(2) by the UPC!
To sum it up, it was UPC’s big event and all is well in the best of worlds.
One could indeed view the UPC as being “a court designed to service the interests of the few, and not the many”.
There were some questions raised about the Staff Regulations of the UPC in the comments on a previous posting.
As a matter of fact those regulations entered into force in February of this year and are published on the UPC website:
These regulations make for interesting reading.
A number of points worth noting:
– There doesn’t appear to be any provision made for “staff representation” or any form of “joint bodies”.
– The regulations appear to be silent on the fundamental rights of staff, in particular the rights to freedom of association and to strike and the exercise of these rights by staff.
– Concerning the internal means of redress there is a nominally independent “appeal board”. As far as I could understand, this is not a “joint body” (i.e. there is no provision made for staff representation).
– There is no mention of any means of redress against decisions of the “appeal board”. In particular there is no mention of any possibility for judicial review. In the absence of any provision regulating this, it must be assumed that these (administrative) decisions are to be considered final.
There is a definite impression here that staff of the UPC are left in a legal limbo as regards their employment rights.
Let’s recall that from a legal perspective the UPC is not an EU institution – although vigorous efforts are made to market it as such.
It is an international organisation (purporting to be a “court”) established by a group of EU member states and is subject to its own “sui generis” law. In other words the UPC agreement is a distinct and separate international treaty which remains outside the immediate remit of EU law.
In my mind it speaks volumes that no provision has been made to ensure that staff of this “court” have access to independent and impartial external judicial review of decisions affecting them.
At the same time we learn via a posting from the law firm Bird & Bird that “[t]he basic monthly salary of a Court of First Instance judge is €18,000 and that of a Court of Appeal judge is €20,000, plus allowances and expenses.
According to some published statistics, the median remuneration of an judge with 5 to 10 years of professional experience in Germany is around € 75k (pre-tax) which works out at around € 6300 per month.
Of course some senior German judges earn more but according to available information the monthly (pre-tax) salaries for top judges (such as the Chief Judges of Federal Court like the Bundesarbeitsgericht, Bundessozialgericht, Bundesfinanzhof, Bundesgerichtshof and Bundesverwaltungsgericht) appear to be of the order of € 15K (civil service pay grade R10).
Readers are free to join the dots and draw their own conclusions re the above.
But I can hardly be alone in my perception of a certain irony that national judges are queuing up to join an international institution which makes such patently inadequate provision for safeguarding the rights of its own staff.
Dear Follow the Money,
Thanks for publishing a link to the UPC Staff regulations.
UPC Staff regulations are indeed quite revealing.
According to Art 1(1,e) of the Staff regulation, “staff” means all persons employed by the Court except the judges, the Registrar and the Deputy Registrar.
This leads immediately to the conclusion that a judge removed from office according to Art 10 of the Statute has no means of redress whatsoever! I find this very odd for a court which is meant to work under EU law.
It is well known that some German judges complained about the delays for the opening of the UPC. Due to this delays, they were losing a lot of money….
For “ordinary staff, no recourse beyond the “Internal Board of Appeal” is foreseen, e.g. to the ILO-AT or any other jurisdiction.
It is to be supposed that the wages of judges and staff will not be subject to national income tax in the country of assignment. How their global revenues that is their wages and other income in the country of assignment or worldwide will be taken into account is a mystery.
The whole staff regulation and statute of the court bear potential problems as the legal framework of employment has been put together.in a rather shoddy manner.
The absence of a proper mechanism of salary evaluation is not boding well for staff.
The only advice to be given: if you are not one of the happy few judges, better not think of getting a job at the UPC as you might bitterly regret it.
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