The level of transparency at the Unified Patent Court is far below what would normally be considered acceptable in civil court proceedings in most of the EU member states, says UK, Dutch and European patent attorney Joeri Beetz of law firm Keltie. He decided to build a UPC search site himself. Kluwer IP Law interviewed Beetz about his initiative, and asked the UPC for a reaction.
‘It was part hobby, part frustration. I have been building websites since the mid-90s for sports clubs, friends, student organisations, a band, and others. About five years ago, I built a website with EQE statistics that may already have been used by many European Patent Attorneys. When I see a nice data set that may be of interest to more people than just me, I start coding.
I had already been looking at the EPO API for a bit an was looking for a useful website to build based on that. At that point, the UPC finally started. As an early UPC enthusiast (I went to Strasbourg in 2013 to get my UPC certificate before there even was a grandfather provision), I closely followed and participated in all the discussions about opt outs and the UPC CMS.
When the first cases were filed, it was clear that the UPC website and the UPC public API were highly dysfunctional. This immediately gave me the sense of purpose that I had been looking for and I started building a website that could make the limitedly available public UPC information easily accessible to everyone.’
How has the response been?
‘The response has been great. It’s a very niche website of course, but there are about 100 unique visitors every day and many of them have contacted me just to thank me, to report bugs (please keep doing this!), or suggest improvements. Some people tell me they use it not just out of curiosity, but also in their daily work. Mainly for quickly checking opt out and UP validation information for specific patents.’
Do you think the UPC should improve the availability of information?
‘Yes. Certainly. Personally, I may be happy to say that I can show information not available via the official UPC website. But for the first proper supranational patent court, it is important that there is full transparency in the cases that are pending, the decision that are made, and the case law that is formed.
The official UPC website has improved a little bit in recent weeks, but it is still very difficult to see what cases are pending, and impossible to see what they are about. Only some decisions are partly published, but certainly not in a structured way that allows for proper analysis by the general public. Authorised and registered representatives can see a bit more by entering the non-public CMS, but also for them 99% of the documents submitted to the Court are inaccessible.
The current level of transparency at the UPC is far below what would normally be considered acceptable in civil court proceedings in most of the EU member states. What I would like to see is an EPO register style online dossier where all relevant documents can be easily accessed by any interested person. If the UPC does not offer this, I’d be happy to build this myself, but the current version of the public API does not make that possible yet.’
Have you been in contact with the UPC about this?
‘I have submitted two or three requests about technical problems with the public API, but I’ve never got any substantive answers to those questions. Just a few very late responses indicating that the questions would be forwarded to the relevant departments.’
More in general, what is your first impression of the court? Has the start been promising?
‘The launch of the CMS and the first weeks of opt out practice were dramatic and not very promising. That part of the system appears to be functioning somewhat acceptably now, but it still has the look and feel of a software application built in the final years of the previous century.
From what has been made available to the public and reported by some of the attorneys involved in the limited number of hearings so far, the actual court itself looks more promising. The first published orders and decisions are clear and appear well-reasoned. But we’ll have to wait for the first proper conclusions in a few infringement and revocation cases to really get an idea of what to expect from this new court.
Interestingly, none of the defendants appear to have challenged the legality of the court itself and the distribution of cases over the different branches of the Central Division yet. In the years running up to the start of the UPC, this has been a popular topic of discussion on some patent-related websites. The European legal profession appears to be happy to embrace the new court and use it to defend the interests of their clients.’
Have you or your firm already filed any cases?
‘Not really yet. We’ve filed, corrected, and withdrawn opt outs and requested unitary effect for granted European patents, but we haven’t filed any infringement or revocation actions. Some of the patents currently litigated at the UPC have, however, been prosecuted at the EPO by our attorneys. So, we are following those cases closely.’
You’re based in London. How does the start of the UPC influence the activities of you and your colleagues? Is the position of the UK outside the UP system a (dis)advantage?
‘It would be difficult to argue that having lost the London branch of the Central Division and not having our own Local Division is an advantage. But the position of UK patent attorneys in Europe is certainly not a bad one.
After Germany, we have the largest number of EPO qualified patent attorneys and UK patent attorneys with UPC qualifications have the additional advantage that many of the British patent lawyers need to team up with a UPC representative to be able to represent their clients at the UPC.
For many companies, the UK market is too important to ignore and many UPC cases will see parallel litigation on the same European patents in the UK courts. For a coordinated approach, it will certainly not be a bad idea to use a UK firm to take the lead in the legal proceedings at both sides of the Channel.’
Your firm Keltie is also active in Ireland. Any chance it will join the UP system soon, you think?
‘Keltie has offices in Dublin and Galway with local European and Irish attorneys. At the moment, however, we are still waiting for the Irish government to announce a date for a referendum on the ratification of the UPC agreement. May 2024 could be the first option, but I haven’t seen any confirmation of the referendum going ahead by that date. If and when the referendum is successful, it is likely that there will be a Local Division in Dublin soon.’
Kluwer IP Law asked the UPC for a reaction and received the following message from the court’s Registrar, Alexander Ramsay: ‘During the sunrise period and the following months after the entry into force of the Agreement the staff and judges of the Court have worked hard to implement and improve the different processes necessary for the Court’s functionality. In particular a lot of effort has been put into the Courts Case Management System. When doing so we have had to do a strict prioritization and focus first on the issues directly relevant to our core business. The issue of transparency is very important and I assure you it is something we take very seriously. In the coming weeks and months we will further improve the search functionality on the Court’s website as well as the system for displaying orders, decisions and timing of court hearings.’
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“none of the defendants appear to have challenged the legality of the court itself and the distribution of cases over the different branches of the Central Division yet”
Wait that a case goes in appeal.
There are some high douts wheter the UPC is actually a ‘common court’, and i doubt that the UPC will forward any question to the CJEU about it’s own validity, especially the validity of the Brussels1 EU regulation which says that the UPC is a common court like the Benelux Court.
obviously, the UPC has focused so far on their core business, i.e. the court it self and their decisions, rather than on IT issues: it is a matter of (limited) resources and timing, no wonder that their website is far from complete.
Why should “common” be intended as an opposite of “distributed”? The branches alleviate a centralised structure and still function as a common and distributed authority. And, finally, about the only convenience to large companies with respect to SMEs and universities: the idea is to simplify patent validation and/or objection, and also patent revocation or infringement, by using only one decision maker instead of multiple ones. This clear improvement is very welcome by SMEs or universities as well. These have yet usually less resources but they could be helped with a fees reduction: this political decision can be still taken by the States all together (so as they could take a similar decision about the EPO fees)
@ law sniffer
That law sniffer is a staunch supporter of the UPC is an acquired fact. It would be interesting to know wherefrom law sniffer knows that “this clear improvement is very welcome by SMEs or universities as well”. There is one zombie organisation of SMEs in the orbit of Business Europe who is in favour of the UPC. All other SME organisations I know are not in favour of it. Why did Poland and the Czech Republic refuse to ratify the UPC? Slovenia and Portugal have ratified as they have been promised an arbitration centre.
If the contracting states wanted to agree on a reduction of fees for SMEs and universities, this decision could have been taken a while ago. The only gesture towards SMEs are ceiling on recoverable costs and the possibility of judicial aid.
Furthermore, a reduction of court fees is one aspect. What about the fees for representation? As the time limits at the UPC are very short, it means that representative fees will be even higher. I do not see any of the law firms staunchly supporting the UPC to reduce the fees for SMEs or universities.
The UPC is made for big industries and SMEs have only be used as a fig leaf behind which the big industry and internationally active litigation firms have hidden.
Some EPO fees are reduced for SMEs and the like, if they have their seat in a country which does not have as official language one of the three EPO languages.
Dear Adam Brown,
When looking at R222,1 UPC, waiting to appeal does not appear to be a solution: “Requests, facts and evidence which have not been submitted by a party during proceedings before the Court of First Instance may be disregarded by the Court of Appeal.” This provision is comparable to Art 12(4) and 12(6) RPBA21.
It is not sure that defendants will necessarily challenge the “legality of the court itself and the distribution of cases over the different branches of the Central Division”. Defendants might become claimants and they do not necessarily want to lose the possibility to act before the UPC.
Decisions of the UPC might rather be challenged when they have to be enforced at national level. I am not a specialist in French law, but one can imagine that in France a ‘”Priority question on constitutionality” (Question prioritaire de constitutionnalité) be raised. I would think that a decision which does not come from a court according Art 6(1) ECHR cannot be enforced. I also refer to Me Dhenne’s contribution of july 12th on this blog.
For multiple reasons, like withdrawal of the UK without any withdrawal clause in the UPCA, management decision of the chair of appeal court and amendment under Art 87(2) UPCA for the “provisional” and “definitive” allocation of the duties foreseen in the UPCA for London, allow reasonably to question the legitimacy of the UPC. This is the more so, since the provisions of the VCLT have been superbly ignored.
It would be suicidal for the UPC to bring any question to the CJEU about its own legitimacy and the validity of the Brussels1 EU regulation. A decision on the legitimacy of the UPC will have to come from outside.
“It would be suicidal for the UPC to bring any question to the CJEU about its own legitimacy and the validity of the Brussels1 EU regulation. A decision on the legitimacy of the UPC will have to come from outside.”
If a defendent raise the question of the validity of the Brussels1 regulation in front of the UPC, I think the UPC itself is forced to ask the question to the CJEU.
small countries do always hamper sharing or centralising of institutions because they fear to lose weight, power and sovereignty, if you listen to them you would have no common institutions at all, which everyone should welcome instead of criticising. And any institution should rather be improved and not only opposed