The extent of the problems with the content management system took the Unified Patent Court by surprise. Alexander Ramsay, registrar of the Court and former chairman of the UPC’s preparatory committee, has said this in an interview with Kluwer IP Law. According to Ramsay, the court is working hard and spending a lot of resources to remedy ‘three layers of difficulties’. Another challenge, he says, is to facilitate the fast growth of the Court. ‘It is a great effort to onboard and train new people, both judges and staff. In particular due to the decentralized structure that is inherent in the system.’
It’s almost eight months since the court has opened its doors. Does it still feel as the starting phase for you?
‘The Court has come off to a good start. The case load, the general uptake and reception, as well as the performance of the Court shows that there are great prospects of success.
Having said this, it needs to be kept in mind that it is a large and complex project to start up an international organisation, perhaps in particular a court. In our case we also have to deal with a complicated geographical set up and employment model.
Against this background, the answer is yes, we are still in the starting phase, and we have some time to go before we will find ourselves in a steady state when it comes to the organisation of the Court.’
Are you satisfied with the number of cases that have been filed with the court?
‘Yes, the number of cases exceeds our expectations, and I am pleased indeed with the confidence shown by the users!’
By far most of the cases have been filed in divisions in Germany. Do you think local divisions of the UPC in all member states can flourish?
‘It is true that many cases have been filed in Munich, Mannheim, and Düsseldorf. This was indeed expected considering the pre-UPC patent litigation landscape. We see also several cases being filed in other divisions while a few divisions still are to receive their first. How the situation will develop remains to be seen and it is still too early to draw any firm conclusions.’
Ireland has announced a referendum will be held in June about joining the Unitary Patent and the Unified Patent Court. What is the state of affairs in other member states which have signed but not ratified the UPCA? Do you expect more of them to join the system any time soon?
‘It is encouraging to see that the referendum in Ireland is scheduled. I am indeed very keen to welcome new member states in the system since the strength and attractiveness will grow with a wider geographical coverage. Having said this, the decision to ratify the UPC Agreement is a decision by the parliaments of the individual member states. I am not privy to any considerations now made in this regard. We are focusing on getting the Court operational in the best possible way and are confident that the functionality of the Court will prove to be the strongest possible argument for the remaining EU member states to join.’
There have been a lot of complaints about the IT-system. One of the most outspoken opinions came from Sir Robin Jacob on this blog. He said: ‘It’s a very severe problem, the trouble is it was overdesigned. It’s trying to imagine the litigation system as a series of steps. You have to fill up a form for the first step and then the next one and the next one. And it sets the times and so on. It’s not how real litigation systems work, they’re much more flexible. All sorts of things happen. I’m told that originally you could only have one plaintiff. And that if you’re filling up a document and you want to go back and review it you can’t. That’s ridiculous. The judges are deeply unhappy, is what I’m hearing, it’s driving them crazy.’ What can you say to reassure the users of the CMS?
‘Yes, we experience problems with our case management system (CMS). I would say that we have three layers of difficulties. First, it is a complicated system with individual processes/workflows for every action where one action is supposed to prompt the next one. If you make a mistake, it is very difficult to go back and it is very difficult to ‘change lanes’.
Secondly, there are still procedures that remain to be implemented and last, but not least, it is a new system and bugs are unfortunately still frequent. We are working hard and are spending a lot of our resources to remedy the problems. Due to lack of resources, we are forced to prioritize, and we then give priority to the most important features and problems which are the ones that are directly case-relevant, while other improvements need to stand back.
Having said this I do want to underline that we are fully committed to eventually reach a point where we have a fully functional system that meets the high standards of an international Court. It is however clear that it will take some time still and that we all need to show a bit of patience.’
Did the problems come as a surprise? What has so far been done to improve the CMS?
‘New IT systems seldom work flawlessly from the beginning, but the extent of the problems explained above did come as a surprise. We are constantly working on improvements and release new versions of the CMS software with a two-week interval. Partly these releases remedy bugs and partly introduce new or improved functions. Recent examples of improvements that could be mentioned is the “My legal team function”, the possibility to download documents in a bundle from the CMS, and the enlarged possibility to do self-corrections in the CMS. We are currently working on improvements concerning access to decisions and orders via the CMS and the transfer of orders and decisions to our website. These coming changes will improve the transparency and the user experience when accessing the decisions and orders of the Court.’
Users have been informed by the UPC about security testing in the Pre-Production CMS environment (CERUS), which means this will not be available from 8 to 15 February and from 26 February to 7 March. Why are these tests necessary?
‘This is a standard routine procedure and good practice relevant to any software related business. We need to make sure, via regular security checks that we meet our high set standard to be confident that our systems are safe from malicious attacks.’
These has also been criticism on the facility to search cases on the website of the UPC. It would be overly complicated and not very timely. Others, like UK, Dutch and European Patent Attorney Joeri Beetz (here) and French patent litigation specialist Pierre Véron (here) have launched their own search facilities. Do you agree this can be improved and, if so, what has been done so far about it?
‘Yes, there is room for improvement. As stated above we are currently revising the accessibility of orders and decisions on the CMS, as well as introducing automatic (API) transfer of relevant order and decisions to the website. In this package we will include improved searchability also related to headnotes and keywords. Once these amendments are in production the user experience when accessing the orders and decisions will be improved. We are also planning other improvements when it comes to how we present cases, orders and decisions, and the calendar function on the website.
I understand that these improvements could be seen, from the outside, as easy things that should have been in place/improved earlier. However, the fact that we have been forced to focus almost all our resources on the CMS-related problems has forced us to give these issues lower priority.’
What do you see yourself as the most important challenges for the court?
‘The Court has had a good start and I am really impressed by the dedication and professionalism of the judges and all the staff. I am confident that the momentum will be maintained and that the Court will grow into a main litigation centre for patent disputes. Our biggest short-term challenge is to meet and overcome the problems we have with the CMS.
Another big challenge is to facilitate the growth of the Court. The fast increase in case load also brings challenges in increasing the number of judges and staff. When an organization is expanding as quickly as we do it is a great effort to onboard and train new people, both judges and staff. In particular due to the decentralized structure that is inherent in the system. Also the fact that we are depending on the member states to provide the administrative support staff requires a high level of cooperation and communication that works both ways. This cooperation works well but the situation nevertheless will be a challenge in the coming years when I expect the Court to grow considerably.’
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IT is always easy to criticise, everyone sees it and claims to understand it better than others, and then it is too often used as an excuse to justify the weakness of one’s own work, so I personally support the UPC and encourage them to go ahead as planned and not listen to the black crows
I have serious conerns regarding the CMS for protective letters.
The CMS is in contradiction with the RoP, in particular R. 207. In R 207 it says that electronic addresses and persons authorized to accept servic for the possible applicant for provisional measures are to be provided if known. In practice, these persons and electronic addresses are never known to the defendant. He knows the patent proprietor and possibly licensses or subsidiaries and their postal addresses and general electronic addresses, nothing more specific.
However, the CMS does not accept if only the company and postal address is given. ELectronic address and person authorized to accept service are mandatory fileds in the CMS.
It is a serious problem if the protective letetr is not accepted for formal reasons due to a wrong electronic adrres,, in particular given the fact that the CMS has higher requirements than laid down in the RoP.
An IT system cannot be in contradiction to the law.