The European Patent Office and the Unified Patent Court (UPC) have signed an agreement on the exchange of data between the two institutions.
The agreement, which was signed by EPO President António Campinos and President of the UPC’s Court of Appeal Klaus Grabinksi on the fringes of a high-level conference last week in Brussels, provides the legal basis for facilitating the exchange of data between the EPO’s European Patent Register and the UPC’s Register, as well as for possible operational support from the EPO for the UPC’s training framework.
The agreement will be an important element in establishing the UPC’s case management system. According to António Campinos, ‘The EPO is proud to support the UPC in establishing a truly IT-driven, unified patent judiciary.’ Mr Grabinski stated: ‘The UPC is pleased to cooperate with the EPO in the necessary exchange of register data and in the training for UPC judges.’
The agreement will take effect with the entry into operation of the Unified Patent Court Agreement, which is expected as of 1 April 2023.
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Does anyone have more context? The information itself is not more than “two top guys in IP matters are having a field day”. Proceedings before UPC simply do not work without an instant data exchange with EPO, so what is the point of a November 2022 agreement? Does it settle things that are already practice in background? Since the UPC is dependent from EPO data and case experience (training judges), does the EPO get something in return? Is the agreement open to the public?
What to make of the statement that “The agreement will be an important element in establishing the UPC’s case management system”?
A fully fledged version of the UPC’s case management system was already supposed to be ready for action. Indeed, “strong authentication” was supposed to have been implemented for that CMS in September 2022 … which deadline was replaced by “the end of October 2022” and now by heaven knows what date.
The start of the sunrise period is now just over one month away. Are we really supposed to be reassured by a statement which effectively confirms that the CMS is still in the process of being established?
Oh well, if the UPC’s “implementation roadmap” can be trusted, this week should see the start of the “Sunrise CMS practice” period, which is when “the CMS system will be accessible to the public with the same functions as from the start of the Sunrise”. Amazingly, only 3 to 4 weeks was originally envisaged for that period. Given that it has not yet started, the likelihood is now that the “Sunrise CMS practice” period will last for a maximum of 3 weeks, and perhaps even just over 2 weeks.
It would not surprise me if the “Sunrise CMS practice” period starts at the end of this week … ie a day on which most or all of the US is on holiday, and is immediately followed by two non-working days. That would tie in with the date selected for the start of the sunrise period proper, which is a non-working day that (at least in the UK) is immediately followed by a bank holiday. It would also follow the pattern of the UPC seemingly doing everything that it can to increase the legal and practical difficulties associated with preparing and filing opt-outs.
It is almost as if the UPC is taking active steps that are aimed at reducing the number of valid opt-outs that can be registered before the end of the sunrise period. It makes one wonder whether the UPC has an interest (including a financial interest) in increasing its early case load, and hence has a clear conflict of interests with regard to its handling of (the practicalities for) opt-out applications.
Does anyone know how to get a UPC smart card and reader if you are an EPA in one of the non-EU, EPO countries. The list of smartcard providers seems very long and complex, hard to decipher and hard to engage with from outside the EU ,and even inside the EU. Any thoughts?
Might this agreement solve this problem for EPAs?
Even with a SmartCard from a trust service provider in LU, which allows successful access to the input page of the CMS, and even with a signature that complies with the eIDAS Regulation since 2020, there are currently still unsolvable problems:
– No forms available, except those dated March 2022.
– No updated FAQs on the UPC homepage.
– IT UPC response time: more than 4 weeks, if any response at all.
– No clear statements on the interpretation of Rule 4 RoP in relation to signature requirements (there are IP service providers offering an application to opt out for EUR 20.00 or EUR 50.00 per patent and saying that they will take care of the signature or that a signature is not required compliant to the eIDAS Regulation).
– No practicable information on an API for handling hundreds of applications to opt out.
– Until 23.11.2022: Neither in DE nor in CH is there a trust service provider that can offer a smart card with the required certificate.
The suspicion remains that the rules of fair competition are not being observed here.
There are rumours only, at least for me. The official list of authentication providers provided by UPC is by far too broad. Some of the providers do not issue physical smart cards or USB-sticks any more, some do not issue eIDAS conform authentication. I hear that attorneys in Luxembourg have a provider, while german attorneys are still working at a solution with a company. Austrian attorneys are still engineering as well.
“UPC has an interest (including a financial interest) in increasing its early case load”
A typical behaviour of a self-financed institution: doing everything they can for money:
1. Expensive court fees of 20.000eur to keep smes at bay;
2. Patent expansion to make sure as much patents fall within its jurisdiction.
A bit like the EPO, which is self financed.
How can society tolerate self financed institutions?
What’s next, quarterly results?
If the agreement should be an important element in establishing the UPC’s case management system, why is it not possible to give access to UPC users the same access as for users of the EPO?
This would avoid the present problems for obtaining access to the CMS system!
It is not excluded that the difficulties in having access to UPC’s CMS system has the aim of avoiding too many opt-outs during the sunrise period. This goes on a par with the amendments of R 5(1,b) making opt-outs very complicated.
“It is not excluded that the difficulties in having access to UPC’s CMS system has the aim of avoiding too many opt-outs during the sunrise period. This goes on a par with the amendments of R 5(1,b) making opt-outs very complicated.”
They make it complicated because the UPC wants money! It needs money from litigation to survive! in which country does the courts takes a percentage of the dispute? Only in Germany and Austria.
In an earlier thread about the UPC one commentator opined that “the legal framework of employment has been put together in a rather shoddy manner”.
It was also mentioned how 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 distinction between judges and mere “staff” is also echoed in the UPC Protocol on Privileges and Immunities.
Article 9 of the UPC-PPI is directed towards “Privileges and Immunities of the Judges and the Registrar” whereas Article 10 is directed towards “Immunities and Privileges of the Staff”.
Article 10 provides that staff are “… exempted from national taxation on the salaries, wages and emoluments, but not on pensions and annuities, paid to them by the Court” and further provides that “these salaries, wages and emoluments may be taken into account by the State Parties for the purpose of assessing the amount of taxation to be applied to income from other sources”.
The latter provision – i.e taking UPC income into account for tax assessment of other income – is an application of the so-called progressive taxation principle.
This is commonly used in the case of international organisations.
For example, it applies to the staff of the EPO.
What is noteworthy here is that Article 9 omits to apply this “progressive taxation” principle in the case of judges and the registrar.
From this it can be concluded that the contracting states do not have the authorisation to take the UPC income of judges and the registrar into account “for the purpose of assessing the amount of taxation to be applied to income from other sources”.
What this “privilege” means in practice is, for example, that a part-time judge working for Nokia in Finland may not have his or her UPC income taken into account by the Finnish tax authorities when they are assessing that person’s overall tax liability in Finland. That is of course a purely illustrative example. So for part-time judges the UPC will provide a nice little tax-free earner on top of their day-job salaries.
The same principle will apply to full time judges. If they have income from other sources, their UPC income will not increase their overall national tax liability.
This is a rather curious exemption given that in the case of most international organisations the aforementioned “progressive taxation” principle is applicable en bloc to all staff members.
Such is at least the case at the EPO where all staff – including members of the Boards of Appeal – are subject to this principle.
Likewise Article 9 of the PPI has no provision corresponding to Article 10.3:
“No State Party is obliged to extend the privileges referred to in paragraph 2 to its own nationals or to a person who immediately prior to the employment by the Court was a resident of that State Party.”
Thus an ordinary staff member of a UPC branch who is a citizen or prior resident of the state where that UPC branch is located could in principle be subjected to national income tax under Article 10.3 PPI.
Judges and registrars in the same circumstances would however be exempt under Article 9.
It is quite clear from the PPI that, in relation to taxation matters, UPC judges and registrars have been granted significant additional “privileges” over and above the common “staff”.
“provides the legal basis for facilitating the exchange of data between the EPO’s European Patent Register and the UPC’s Register,”
The legal basis for the two organisations are the EPC and the UPC. How can any “exchange data agreement” provide a “legal basis”?
Ah well, photo OP PR time, I presume.
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