When the Unified Patent Court (“UPC”) endeavour was in the process of being designed back in the day, its architects presented the project as an example of a one-in-a-kind cosmopolitan litigation forum, the seat of patent judges and litigators from all cultures, skills, backgrounds, languages and walks of life. A cosmopolitan court that would set the benchmark for the quality of justice internationally across the board. Word was going around that the Babylonian 7-day week would be enlarged with an extra day, a new 8th day aimed at honouring the day when the UPC saw the light after an incredibly difficult gestation process.
After the first 6 months of the UPC ‘s operation, we have not seen that Alice in Wonderland vision but, instead, a rather patchy landscape. In reality, we are not seeing a cosmopolitan court but a German court or, to be more precise, a Munich court, which begs the question as to whether the UPC should be renamed the Unified Munich Court (“UMC”).
The objective data speak for themselves:
Of the 78 decisions approved by the end of November, half came from the Munich Central and local divisions. If one adds the decisions from other German local divisions (7 from Hamburg and 6 from Düsseldorf), it turns out that the German divisions have issued two thirds (i.e. 66 %) of the total decisions. The imbalance in comparison to the central and local divisions hosted by other countries is absolutely awesome, albeit not unexpected by those who were observing the UPC architecture from outside the building. For example, France (i.e., Paris), which aspired to be one of the three poles on which the UPC tripod would stand, has not seen the cases it wanted to see. By the end of November, the Paris central division had only issued 1 decision in relation to a preliminary objection and 3 decisions in three cases dealing with revocation actions (in fact, 2 of them should be counted as 1).
Milan, which, as a result of an ultra vires manoeuvre of the Administrative Committee was assigned a decaffeinated version of the list of competences initially assigned to the London central division, is not faring any better. By the end of November, the Milan central division had not issued any decisions. In turn, the Milan local division had formally issued 9 decisions, although they referred to just 4 cases.
Moving North, the Helsinki local division had formally issued 5 decisions, but all relating to the same case. For its part, the Nordic Baltic Regional Division had issued 2 decisions.
The Hague local division had issued only 2 decisions and in relation to the same case. Likewise, the Vienna and Brussels local divisions had issued just 1 decision each.
Finally, by the end of November, 4 local divisions had not yet issued any decisions (Mannheim, Copenhagen, Lisbon and Ljubljana).
In addition to the dramatic imbalance in the distribution of cases, another salient feature of the first 6 months of operation of the UPC has been the preponderance of German as the language of the proceedings (more than 50 % of cases). Although many stakeholders would like to see English playing a more prominent role, as it would raise the cosmopolitan allure that many, including some UPC judges, would desire for the UPC, the choice of the language is really up to the parties. In this regard, the Order of 18 October 2023 from the President of the Court of First Instance, which accepted a petition filed by a defendant based in Viladecans (Barcelona) to replace Dutch with English as the language of the proceedings is very encouraging, as it might contribute to paving the way towards cosmopolitism in future cases. It is an irony of destiny that the company that triggered the change of language in that case is domiciled in a non-UPC territory.
All in all, the teaching after the first 6 months of operation of the UPC is very clear: the UPC is dead but long life to the UMC!
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well if Spain and the UK were of the game a more balanced score would probably have been possible: but decisions bear consequences
So all is as expected. Most UPC litigation so far is in Germany because:
a) most litigation was already in Germany
b) Germany is a big target
c) Germans like suing Germans
The patchwork of Central, Local and Regional Divisions was set up precisely to recognise these economic realities, and to have the flexibility to deal with the changing landscape as the unitary patent gains acceptance.
No one expected a cosmopolitan nirvana. This has always been a project.
So Don Quixote should put up his spear. The windmill is just beginning to turn and has not (yet) shown it is a giant.
Re. c) I would advise you to check the publicly available names of the parties (and their legal structure) to the proceedings in the German Local Divisions. You might find that the majority does not really revolve around German parties. And that there are more Corps, Incs. and Ltds, than GmbHs and AGs as parties.
Re. b) you could check whether these action pertain only to the territory of Germany or if they also pertain to other UPC countries. Guess what?
Re. a) I would argue that this is not a reason but a result of the real underlying factors for most actions before and after the launch of UPC being handled in Germany: There is a great number of highly qualified, extremely experienced judges rendering fairly predictable results. As well there are lawyers, experienced in streamlined and front-loaded proceedings, focused on written submissions and, thus, intimately aware of a tradition vastly different from some of the more oral legal traditions of other UPC countries. Of course, there are excellent judges and lawyers in all jurisdictions. It’s just that there are more of both in Germany, and that the UPC RoP have taken a page or two from German procedural law.
Whether the future will bring a more even UPC landscape is anyone’s guess. Right now the most hands-on experience with the UPC is gained by German judges and German lawyers.
The justification for the software patent directive was a disagreement of interpretation of the law between UK and German courts.
Now that the UK is gone, germanized UPC can just copy/paste the german jurisprudence in this domain.
European patent law is now fully germanized.
Would it have been significantly different, Jim, absent BREXIT? I can imagine that some big chem/pharma/bio cases would have been initiated in London (for forensic fact-finding reasons) but that, otherwise, exactly for the reasons you give, the great bulk of the caseload would still have been in Germany, contrary to what Law Sniffer surmises.
What do other readers think?
What do the statistics for cases before the UPC tell us about which types of companies (whether multinational, large, SME or micro and whether from the EU or otherwise) are launching litigation at the new court? And how do those statistics compare to the equivalent figures from prior years for national litigation (eg in Germany)?
The UPC was supposed to benefit EU industry, and SMEs in particular. Do the figures so far indicate whether, in practice, the UPC is living up to this promise?
Among the 140 pages of Rules of procedure, the two relative EU regulations, the UPC agreement, etc. I dont see anything concrete about SMEs, etc. why should the UPC be measured on that? If a country is not happy with this it should not ratify the agreement and we will make without those few small missing states, it‘s up to them
Sniffer, do you mean to say that, during the passage and ratification of the unitary patent package, repeated references to supposed benefits for SMEs that were made by the UPC’s proponents were nothing more than empty promises that were cynically calculated to garner sufficient support from the EU and national legislatures? Perish the thought!
well it is up to politicians to judge if the promises made to them were maintained or not and to react accordingly, not to us, we do a different job
It is well known that German courts have been more favourable to patentees than to infringers and parties seeking nullity. This why a kind of proportionality has recently been introduced in German patent law when it comes to PI. The situation seems however not to have changed.
The Federal Court of Justice is even sometimes called a “patent repair shop”. It claims to apply the case law of the EBA, but actually does not, e.g. its position on added matter.
As a German UPC local panel will always be composed of two German judges, it is does not come as surprise if proprietors launch actions before a local panel in Germany. The situation might be slightly different at the Munich section of the Central Division, but the German influence can there as well be considered important.
It will be thus an important task for the Court of Appeal to get rid of national influences. Let’s wait and see if it will be successful in this endeavour.
It might look funny to compare the author of the blog to Don Quixote. It remains that the “adaptation” Art 7(2) UPCA to delete any reference to the UK can well be considered as the “result of an ultra vires manoeuvre of the Administrative Committee”.
I allow myself to add that the UK has withdrawn from a treaty which does not even have an exit clause. It is thus still possible to consider that the “UK is of the game”.
The fundamental question of the UPC’s conformity with Art 6(1) ECHR remains unanswered. This is for instance, due to the decision of the UPC’s presidium and of the AC about Art 7(2) UPCA. It is also not clear if the UPC is really a court common to the Contracting Member States and as part of their judicial system.
The unitary patent might “gain acceptance” by those who promoted it (no wonder), but it still is a giant with very fragile feet.
Whatever one’s opinion on the UPC might be, Mr Montañá’s contribution has the merit to bring to light some embarrassing questions. I would not say that the UPC is dead, but it is certainly not as healthy as some might wish. Shoving problems under the carpet has never been of any help. It can, and actually should, backfire.
It does not appear so innocent, that the EU Commission wants to set up its own system in matters of SPCs and SEPs. This is certainly a blow to the UPC, as on top of it, the CJEU might end up in having a say in substantive patent matters. All the promoters of the UPC never wanted to put a foot in this door.
The Milan seat of the Central Division is not operational yet. That is because of the 12 month delay of Article 87(3) UPCA. German is used initially in the German Local Divisions because the first actions in those divisions were prepared before the German government approved the use of English as a language. The Unified Patent Court is an international court that already deals with a considerable number of truly international cases within 6 months. I am a litigator in an international law firm; we handle actions for our clients in any division that is most suitable for the case at hand. That will include actions in the Local Division in The Hague, but the purpose is the best option for the client, not bringing actions in a location close to my home. It may take some time before everyone is accustomed to the international approach and stops focusing on local interets.
@ W. Pors,
If one understands you well, what you are suggesting is Forum shopping.
In other words, your clients, all with deep pockets can afford to go where it is best for them.
Can a SME afford Forum shopping?
What is the legal basis from setting a section of the Central Division to Milan?
Do not come with Art 87(2)UPCA as you know too well that it has not been devised for this purpose.
What is the international treaty or national legislation valid in all contracting states which allows an administrative amendment to the UPC.
Is this use of Art 87(2) UPCA in accordance with the VCLT?
The dominance of UPC divisions in Germany should be no surprise. According to data posted by JUVE, in 2021, the number of patent cases filed in the major EPC IP courts were:
Milan – 94
The Hague – 116
Paris – 174
All of Germany – 841
Not that different from the percentage of German division decisions to date mentioned by Mr. Montañá.
With the UPC local divisions, plaintiffs can go to a court with two known, German judges, plus one judge (or two) experienced in patent litigation from another national state, and obtain a judgment for multiple states in a single jurisdiction.
It is unfortunate that Spain and the UK are not participants, but that is not the fault of the UPC.
Irrespective of any “German content”, a noteworthy feature of the UPC data published so far is the fairly high percentage of revocation actions which are not triggered by infringement actions. This will allow the UPC to review EPO’s decisions to grant or maintain patents.