During the 12 months since the UPC first opened its doors for business, court users across Europe have been studying the decisions that have been emerging from the various divisions in order to understand the practical application of the Rules of Procedure and the approach of the various judges of the courts. This in turn is inevitably used to inform a client’s commercial strategy and ultimately to determine whether the UPC is the European court of choice. It is of course too early for a substantive decision on validity and infringement in the first cases filed, most cases taking at least 12 months to reach a hearing. Notwithstanding this, much has been made of the interim decisions issued to date, particularly in relation to issues such as transparency, access to of documents and preliminary injunctions, only a few of which have proceeded to appeal.
Well before the UPC opened its doors, it was generally accepted that with so many forums in which to bring UPC litigation, it would take a number of years, and appeal decisions, to iron out the inevitable inconsistencies that arise from decision-making by different courts despite those courts operating under the same Rules of Procedure. European practitioners are well used to this, having historically dealt with the consequences of inconsistencies in patent decisions from national courts notwithstanding that those courts are operating under the same umbrella law of the European Patent Convention. The explanation usually given for these inconsistencies is the difference in the litigation procedures in each of the national courts, particularly in relation to expert evidence, disclosure and length of trial.
So in a court like the UPC, where the Rules of Procedure should be uniformly applied, will the inconsistencies persist?
One knotty fundamental area which is yet to be resolved is the approach to jurisdiction. This is nicely illustrated by three decisions, one from the Helsinki local division in AIM Sport v Supponor (UPC CFI_214/2023), one from the Munich Local Division in 10x Genomics v NanoString (UPC CFI_17/2023) and a recent decision of the Paris Central Division in Nokia v Mala Technologies, (UPC_CFI_484/2023). In Helsinki, AIM was blocked from bringing a PI action on the basis that national proceedings that had been initiated in relation to one designation of the relevant European patent before 1 June 2023 (when the UPC opened its doors) were considered to prevent the withdrawal of AIM’s opt-out for the purposes of starting proceedings in the UPC. Conversely, in the second 10x Genomics v NanoString decision issued in Munich, the Court considered itself to have jurisdiction to decide a PI application for an EP despite infringement and revocation proceedings having been brought in German national courts under the German designation of the EP, which had resulted in an injunction being granted to 10x Genomics. In a similar vein, in the Paris Central Division, national invalidity proceedings against part of an EP that were brought before 1 June 2023 were not considered to prevent a revocation action against the whole of the EP before the UPC.
One distinction that may explain the differences between the Helsinki and Munich and Paris decisions may be that the AIM PI action in Helsinki concerns the question of a withdrawal of an opt out rather than jurisdiction alone. However, all three actions concern the pre-UPC existence of relevant national proceedings and, whether or not the existence of an opt-out is the distinguishing feature, the judgments suggest a limited engagement with the Brussels Regulation by the UPC when coming to these decisions. On the face of it these are markedly different approaches and it will be interesting to see how they are dealt with by the Court of Appeal. We note that the Helsinki decision is under appeal (UPC CoA_500/2023) and no doubt court users wait with bated breath to see the outcome.
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It is abundantly manifest that the CoA of the UPC will have a hard job before lines of case law might be established, should the CoA ever achieve this aim. It will take years!
This has to be put in relation with the fact that the proponents of the UPC want the latter to impose its case law upon the EPO and its boards of appeal!
I know of better jokes!
“a limited engagement with the Brussels Regulation by the UPC”
The whole construction of the UPC is dodgy to say the least, the german government apparently argued that removing National Courts like it was done in 2012 for the Benelux Court of Justice is legal:
https://www.stjerna.de/ifg-2006-4/?lang=en
The “common court” fallacy of the Brussels1 regulation and the UPCA will soon fall appart, I am surprised it is not in front of the CJEU yet.
It is not by declaring the supremacy of EU law (Art 20 UPCA) and allowing the UPC to file requests for preliminary rulings at the CJEU that the UPC can be considered as a court common to the member states and as part of their judicial system (Art 21 UPCA). The CJEU was never even asked whether it was prepared to accept requests for preliminary rulings from the UPC.
When one sees how the presidium ignores the letter and the spirit of the UPCA one wonders whether the UPC is court according to Art 6(1) ECHR. The same applies to the amendments of the UPCA by the Administrative Committee under Art 87(2) UPCA.
The status of the UPCA has never been vetted by the CJEU. One wonders why? There would have been ample time after Brexit and the postponement of the German ratification to have the UPCA vetted by the CJEU.
The answer is simple: for fear that the UPCA could be considered not conform to EU law. It was important to create a fait accompli in the hope that later the CJEU would not dare say anything against the UPC. Better, the proponents of the UPC came up with a tautology: the UPC is conform to EU law as it is so because we say so.
Before discussing consistency at the UPC, it would have been wiser to clarify its status vis-à-vis the CJEU.
The time bomb is ticking.
and the consistency of the BoA is also a joke, consistency works like this: one board makes whatever decision and all other boards blindly follow it, this is also the reason why the number of opposition cases overturned by the BoA is a joke parameter for the quality of the EPO, as someone falsely claims
I think we should not expect the CJEU to rule that the UPC is illegal (under EU law or otherwise), even if it has reasons to do so. Its judges may well feel compelled not to upset the statu quo, and say that there is no problem after all.
The same cannot be said, I think, of the ECHR. It seems that a straight application of its case law leads to the conclusion that both the transfer of the London section to Milan, and the UPC-CoA’s practice of ruling on some matters sitting in 3-LQJ panels, lead to a court which hands down decisions in a composition not in accordance with law.