Tuesday, 14 January 2014

Representation before the Unified Patent Court: a chance to discuss

One aspect of the forthcoming root-and-branch reform of patent litigation in the European Union (or most of it, at any rate) that has received relatively little attention so far is the issue of representation by European patent attorneys, whose training and qualifications are not the same as those of conventional lawyers. Article 48 of the Agreement on a Unified Patent Court provides as follows:
ARTICLE 48 Representation 
(1) Parties shall be represented by lawyers authorised to practise before a court of a Contracting Member State.

(2) Parties may alternatively be represented by European Patent Attorneys who are entitled to act as professional representatives before the European Patent Office pursuant to Article 134 of the EPC and who have appropriate qualifications such as a European Patent Litigation Certificate.

(3) The requirements for qualifications pursuant to paragraph 2 shall be established by the Administrative Committee. A list of European Patent Attorneys entitled to represent parties before the Court shall be kept by the Registrar.

(4) Representatives of the parties may be assisted by patent attorneys, who shall be allowed to speak at hearings of the Court in accordance with the Rules of Procedure.

(5) Representatives of the parties shall enjoy the rights and immunities necessary for the independent exercise of their duties, including the privilege from disclosure in proceedings before the Court in respect of communications between a representative and the party or any other person, under the conditions laid down in the Rules of Procedure, unless such privilege is expressly waived by the party concerned.
What precisely do these provisions mean and how will they be interpreted?  To consider these questions, the Chartered Institute of Patent Attorneys has organised an open meeting next Monday. Here are the details:

Open Meeting to discuss representation in front of the Unified Patent Court

Monday 21st January, 5pm, CIPA, 95 Chancery Lane, London

CIPA and the Intellectual Property Office (IPO) are hosting an open meeting on rights of representation before the Unified Patent Court.  Mr Justice Birss will be on hand to hear your specific views on the proposed right to represent in front of the Unified Patent Court. Mr Justice Birss is the UK's representative on the Advisory Panel on the list of European patent attorneys eligible to represent before the UPC. Ahead of this work formally starting (within the HR & Judicial Training Working Group of Preparatory Committee), we would like to hear your interpretations of Article 48 of the UPC Agreement and your views, issues, and concerns so that we can have as full a picture as possible.
Attendance is free.  For further details, click here.


MaxDrei said...

What do the words mean? Jeremy, I suggest you ask a German because, to me, they look an awfully lot like the rules about who gets to represent the parties in court (LG, OLG, BPatG, BGH) in Germany, in a patent dispute.

Surprised? You shouldn't be, for there has ever been an awful lot of small patent disputes in the courts of Germany, and a lot of German patent litigators helping the drafters of the new laws.

Every newly-minted German patent attorney needs a special long black court robe ready for immediate action in court.

Jeremy said...

Thanks so much, Max, for painting so graphic a picture of the future for those British patent attorneys who will soon be chancing their arm in the courts of an ever-increasingly German Europe!

MaxDrei said...

Jeremy, the sad thing for me is how the UK has abdicated from its role of influencing the forward progress of Europe. Back in the days when the EPO was new, British patent academics and British Patent Office people were up on the bridge of the ship. Today, many on the mainland, specially Germany, lament the deficiencies of participation of the UK in the places where the future is made. There is no inevitability about Europe being more and more German (or French). Had British politics taken a different course over the last 40 years, it could instead have been much more sensible UK-down-to-earth-flavoured. To take just one example, the French would not then have been able to foist on the Germans their absurd notion of a European common currency, as their price for permitting German re-unification.

Anonymous said...

There are many Germans who would argue that a Patentanwalt will be entitled to represent as of right through sub-section (1) rather than (2).

In the German version of Article 48, "Anwalt" is referred to rather than "Rechtsanwalt" which would be a literal translation of lawyer. A German "Patentanwalt" could consider that he thus meets the requirement. Since all three languages are equally authentic (Article 88) will we see some bright UK patent attorneys arguing that their UK litigation certificate gives them the right to practise before the UPC?

Anonymous said...

And why not? The Legal Services Act defines patent attorneys as "other" lawyers, as compared with solicitors and barrisers.