Three technically qualified judges (TQJ) have resigned prior to the start of operations of the Unified Patent Court.
According to a UPC announcement, Roman Maksymiw (DE), Grégoire Desrousseaux (FR) en Kirsikka Etuaho (FI) handed in their resignations received prior to 31 May 2023. The reason is not mentioned, but it is likely it is the consequence of the strict Code of Conduct of UPC Judges which the court adopted to avoid conflicts of interest (see also this blogpost).
Grégoire Desrousseaux stated this expressly on LinkedIn: ‘A few months ago, I informed you that I was appointed for part-time service, as a technically qualified judge (TQJ) at the Unified Patent Court (UPC). The UPC Code of Conduct was recently published. In my view, this Code of Conduct results in my current activities being largely incompatible with the position of a UPC TQJ. I thus resigned from this position and will continue working as an attorney and patent attorney. I will thus be fully able to assist and represent you not only before the EPO and the French Courts, but also before the UPC.’
Some observers thought more technically qualified judges – many of them attorneys from private practice and in-house company representatives who work for the UPC on a part-time basis and include – would resign, but this hasn’t happened.
CMS
Earlier this week, the court announced that all public APIs would be reactivated as of Tuesday 13 June 2023. ‘Thanks to the measures taken during the sunrise period (…) the overall capacity and performance of the CMS (API included) has been improved.
For the benefit of the overall community and our users, we kindly advise to make appropriate use of these APIs by making reasonable and useful requests to the CMS database. To optimize search time and result provided by the APIs it is recommended to define specific search parameters, including date ranges, patent numbers, case number, party name, etc.’
Nine UPC cases
Up to today, the Unified Patent Court has received nine cases. The first was lodged on at a central division on 2 June 2023 and is a revocation action concerning European Patent EP3666797.
Unitary Patents
The EPO published its first data on European patents with request for unitary effect. 600 patents were granted unitary effect and will be published in the next edition of the European Patent Bulletin.
‘In total, the EPO had received 800 requests for unitary effect by the end of May, as well as 4 500 requests for deferred publication of the grant of the European patent which will make those patents eligible for requesting unitary effect in June and early July.’
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The whole idea of part-time TQJ at the UPC was flawed from the beginning. That, at a pinch, they are envisageable at national level, but even there with strong reservations, it is impensable at international level.
The situation is different with part-time national legal judges. They are judges for the time they do not work at the UPC, and the possibilities of conflicts of interest are relatively minor.
I do not claim that a part-time TQJ will actually be prejudiced, but what matters is that not even the smallest hint that prejudice could possibly play a role has to be avoided.
That the head of the patent department of a big supplier of telecom equipment acts as TQJ in a telecom case is simply unthinkable.
That he can act as TQJ in other technical areas is possible, but then his technical qualifications become more or less irrelevant.
A similar view can be expressed when it comes to a patent attorney dealing, against for example, with biotech cases. Not only he will have to take into account his own clients, but also the adversaries of his clients.
The number of recusal of TQJ might be rather high at the beginning, since very few TQJ have realized what the code of conduct might entail.
If a qualified representative can only become a TQJ once he has retired and given up his membership of epi would have been the best solution as potential conflicts of interest would be greatly reduced.
The way recusals will be dealt with by the UPC will be a very important factor to measure the credibility of the UPC and even to increase its acceptance.
That Mr Hoying was instrumental in the code of conduct is an important point. He never disguised his disapproval of TQJ.
The idea of TQJs is in principle a good one. The problem starts when those TQJs are qualified representatives, only acting part-time at the UPC, and for the rest of the time are acting either in private practice of in industry.
The conflicts of interest are barely avoidable. The part-time TQJs will have to take into account their direct clients and the adversaries of their clients or their competitors before they can decide to sit in a panel.
It would have been much better to have TQJs which are not any longer in active service and also not any longer members of epi.
The situation is less critical with part-time LQJs as they are in any case civil servants.
That part-time technical judges are sitting in some countries is not comparable, be it only as their competence is limited to a single country and does not extend to a very large territory.
At least in the beginning, the number of recusals of part-time technical judges will most probably be rather high.
The credibility and acceptance of the UPC will depend to a large extent on how the delicate topic of part-time judges will be dealt with by the court.