Recruitment of UPC Judges is now open

The preparatory committee has now published the first job openings at the Unified Patent court.

The recruitment of legally qualified and of technically qualified judges of the Unified Patent Court (Court of First Instance and Court of Appeal) has been launched with the publication of the vacancy notices in English, French, and German. The deadline for applications is 4 July 2016.

The finalization of the appointment procedure is dependent on the entry into force of the Protocol on Provisional Application and subsequently the Agreement on the Unified Patent Court.

According to the recruitment information, the following procedure will apply:

The selection process of candidates for judicial posts at the UPC consists of the following steps:

1. A first round of candidates’ selection will be carried out on the basis of answers provided in the Application Form, together with the candidates’ Curriculum Vitae, references and any other relevant document provided.

2. The candidates selected by the Advisory Committee on the basis of this first round of the selection process will be invited to an interview, carried out by members of the Advisory Committee. The interview will aim at evaluating skills necessary for judicial functions at the UPC, such as judicial ethics, experience in meeting tight deadlines, oral communication skills, the capacity to work in a multinational and multilingual environment, etc.

3. Following the first round of selection and the interviews, the Advisory Committee will present a list to the Administrative Committee, recommending the most suitable candidates for posts of judges at the UPC.

4. Based on this list, the Administrative Committee will appoint the necessary number of judges for a proper functioning of the UPC. When appointing judges, the Administrative Committee will ensure the best legal and technical expertise and a balanced composition of the UPC, on as broad a geographical basis as possible among nationals of the Contracting Member States.

This blogger is pleased to note that the "skills" filter (Steps 2 and 3) is applied prior to considering the criterion of a "broad geographical basis", which enters the game only in step 4.  This avoids that unexperienced judges can be favoured over more experienced ones for mere political reasons.


A recent IPKat post pointing out that an independent body for enforcing the code of conduct of future representatives before the UPC is lacking, resulting in a potential violation of Art. 6 ECHR, and the ongoing discussion on disciplinary measures of the EPO BoA made me thinking: How could a hypothetical code of conduct of UPC judges be enforced?

The structure of the code of conduct for the judges will most likely have some similarity to the code of conduct of the ECJ judges, where The President of the Court of Justice, assisted by a Consultative Committee composed of the three Members of the Court of Justice who have been longest in office, shall be responsible for ensuring the proper application of this Code of Conduct. Is this a good solution? Or should the decisions of the president be open to judicial review (e.g. by the ECJ?)

Is the Unitary Patent good for SME's?

The development if the Unitary Patent and the Unified patent court has always been accompanied by the popular narrative of reduced costs and benefit for SME's. Bjorn Ingve Stjerna has now critically tested the promises and political expectations against the reality which is now emerging and compiled his results in an article which is available for download here on his website, which further provides an impressing resource on background documents on the legislative history.

He comes to the conclusion that the alleged support of SMEs by the “unitary patent system” was nothing more than mere lip service in order to maneuver the “patent package” through the legislative proceedings as smoothly and quickly as possible.

Though this result may not come as a surprise given that the system remains essentially unchanged besides or replacing state-subsidized national courts are replaced with the supposedly self-supporting UPC, this article is a fascinating analysis showing how narratives and factoids or half-truths are capable of catalyzing political processes.

Report on the 15th UPC Preparatory Commitee Meeting

The UPC Court of Appeal Building in Luxembourg

The Report on the 15th Meeting of the UPC Preparatory Committee Meeting is available here.

Good news is that Bulgaria is about to ratify and that the recruitment package was agreed (but not yet published) and that adverts for judicial appointments will be advertised in early May.

A draft code of conduct for representatives is being elaborated by the epi, EPLAW and EPLIT and has been discussed (but not yet published). The same applies for the Rules on Arbitration and the Rules of Operation of the Patent Mediation and Arbitration Centre of the Unified Patent Court.

The next meeting will take place on May 26 in Germany and a signing ceremony for the "protocol of provisional application" will take place in June.

The Parliamentary History of the European "Unitary Patent"

German attorney and Certified Specialist for IP Law Ingve Stjerna is known to our readers as an alert and critical commenter of the UPC legislation process (see posts here, here, here, here, here ) and constitutional issues. I do not know what was the reason to abandon the Opt-Out-fee but I think that Ingve's convincing arguments might have played a role.

For those who want to recapture the fascinating parliamentary history of the UPC legislation or simply express their gratitude for Ingve's fight to saveguard our constitutional rights, PatLit recommends to invest one the saved Opt-Out-Fees into his new book:

The Parliamentary History of the European "Unitary Patent"  

Verbatim protocol of selected meetings in the European Parliament and its Legal Affairs Committee (English and original language)  

This book documents the course of the negotiations on the “Unitary Patent Package”. It reproduces the wording of statements made in selected public meetings of the European Parliament and its Legal Affairs Committee on the “Patent Package”, thus permitting a detailed review of the different stages and developments of the legislative procedure, for instance the perception of the European Court of Justice’s opinion 1/09 on the originally planned structure of the Patent Court system, the discussions about invoking the procedure of enhanced cooperation as well as the origins of the controversies about the former Articles 6 to 8 of the “Unitary Patent” Regulation, their escalation after the European Council summit decisions in June 2012 and their resolution according to the Cyprus Council Presidency compromise proposal. 

The book "The Parliamentary History of the European Unitary Patent" is available in two different language versions, German (ISBN 978-3-7345-1071-7) and English (ISBN 978-3-7345-1742-6), more information can be found here (German) and here (English)

UPC Ratificatons: Finland has ratified, UK makes step forward

The number of states having ratified the UPC agreement is steadily increasing and has now reached nine (nine and a half?). According to the European Council website, Finland is the proud 9th signatory state to have deposited its ratification instrument on January 19th, 2016.

According to the available information (see e.g. here), Finland does not participate in the Nordic-Baltic Regional Division. However, no plans for setting up a local division have been published, either.

Moreover, the UK Government has published a draft Statutory Instrument (SI) for the ratification of the UPC agreement. The instrument raises fairly interesting issues, some of which have already been pointed out in the comments on a recent IPKat post on this issue. The interplay between the EPC, UPC-Agreement and the respective national SIs including the question which one would prevail in cases of conflict will surely be a formidable playground for academics, critics, judges and attorneys handling the first infringement cases. 

13th meeting of the UPC Preparatory Committee

The UPC Preparatory Committee has published its report on its 13th meeting on its website. Alexander Ramsay (SE), the previous Vice Chair of the Committee was elected Chair and Louise Åkerblom (LU) was elected to replace him as Vice Chair. An agreement on the Meditaion Rules was reached. According to the knowledge of this blogger, these Meditaton Rules have bot yet been published. 

A proposal for court fees and the ceiling for the recoverable costs received "favourable comments" but still needs some fine-tuning and there is "emerging consensus" on the Protocol on Privileges and Immunity of the UPC.

Further issues on the schedule for the next meeting are

• the Rules governing the Registry
• the Rules of the Advisory Committee,
• the Service Regulation and
• the design of the judicial recruitment and training process, wherein the latter will be dealt with by a working group in a highly prioritised work-stream.

The next meeting of the Committee will take place 24 & 25 February 2016.

Alexander Ramsay further shares this and some other information in an interview with Euroforum.

Mock trial under UPC 18th draft Rules: this will take some pluck ...

EPLIT, the European Patent Litigation Association, is running a mock trial under the recently-published 18th draft of the Rules of Procedures for the Unified Patent Court. The details look like this:

On 22 January 2016, EPLIT will run a mock-trial under the 18th draft of the Rules of Procedure for the Unified Patent Court (UPC). The case to be tried is between Improver Corporation and Remington Consumer Products and concerns a depilatory device, better known as the "Epilady" case. This case was litigated in the late 1980s and early 1990s before various national courts in Europe with drastically different outcomes. For that reason it serves as a reminder of why further harmonization of patent litigation in Europe is a worthy cause. The mock-trial will be staged before the Local Division of the UPC in Munich.

The original Epilady

The panel of judges will consist of Prof Haedicke (Oberlandesgericht in Düsseldorf), Mr Zigann (Landgericht in Munich) and Mr Van Walderveen (District Court in The Hague). The panel has been extended with a technical judge, Mr Klein (formerly of the Boards of Appeal of the European Patent Office). The patent proprietor (Improver) will be represented by Rainer Beetz (Sonn and Partner, AT) and Leythem Wall (Finnegan Europe LLP, GB). The alleged infringing party (Remington) will be represented by Marek Lazewski (Lazewski Depo and Partners, PL) and Jan Stein (Ipracraft AB, SE).

The day will begin with a case management conference (CMC) in the morning, and the afternoon will comprise of the oral hearing. This will be followed by a questions and answers session for the audience.

The event will take place in the Sofitel Bayerpost, Bayerstrasse 12, Munich.

The admission fee is EUR 395 for EPLIT members and EUR 495 for non-EPLIT members. This will include lunch, as well as coffee and other refreshments and snacks throughout the day, and a drinks reception after the proceedings have con­cluded.

Application form here. Please email it to the EPLIT Secretariat here.

Training for UPC technical judges - Antitrust Law

On the last day of the first block of the CEIPI Training Program for Future Technical Judges of the UPC, Nicolas Petit (Univ. Liège) gave a very dynamic and lively talk about the interface between competition law and IP rights. He expects that the UPC will have to establish case-law on antitrust-based defences in patent litigation (FRAND, Standard essential patents ...) as explicitly laid down in Art. 32(1) UPCA.

Prof. Petit

The question whether or not, in case of dubious settlements between the parties, the court will have a duty to raise a motion on breach of competition, was answered by analogy to what is considered to be applicable to mediation procedures: Such a duty exists only where the breach is very glaring and manifest.

He further emphasizes that a source of misunderstanding between lawers and scholars on both fields lies in the different use of the word "monopoly" in IP and antitrust law. While patents are permanently qualified as "monopolies" by IP lawyers, this is not true based on the understanding of this expression in the world of antitrust law. Actually, the patent alone does not confer the sufficient market power to the patentee because there may be lots of competing technologies around. "The patent grants an exclusive right to use a technology but typically does not exclude third parties market" (roughly Quoted from Hovenkamp).

The case law of the FRAND defence is put in analogy to the "essential facilities" case law in the field of antitrust law because the CJEU qualifies intellectual property merely as yet another kind of "raw material" to be processed in secondary markets. Requirement of the admissibility of such a defence would be that the parties are competing in at least a secondary market, which is not the case for Non-Practicing Entities in dispute with potential licensees of their patents. In other words, the FRAND defence will never be applicable to "trolls".

CEUJ Judgement July 2015 (Huawei / CTE C‑170/13) develops a sort of "good faith" test for the behavoir of both the holder of the standard essential patent (SEP) and the implementer who have to respect "certain conditions" in the course of negotiations and when bringing an action to the court.  These new conditions will replace the BGH Orange Book Standard in the future case-law and will be discussed in a separate post.

18th draft of UPC rules "well received"

Via William Jensen (Marks&Clerk solicitors) comes this link to some exciting news for those who are itching to get litigating in Europe's experimental Unified Patent Court (UPC). This latest information reads thus:

10th meeting of the Preparatory Committee - 10 July 2015

 Published: Thursday, 16 July 2015 10:29

The 10th meeting of the Preparatory Committee was held at the Hungarian Permanent Representation to the European Union at the 10th of July. At the meeting the 18th draft of the Rules of Procedure were presented by Johannes Karcher, coordinator of the Legal Framework working group, and Kevin Mooney, Chair of the Drafting Committee. The draft was very well received by the Committee and even if there is one or two items still to settle it was concluded that the Committee expect to agree on a final set of Rules at its meeting in October. The Committee then went on to agree the draft Protocol on Provisional Application of parts of the Agreement on a Unified Patent Court. The Protocol will be opened for signature in the autumn at a date later to be announced.

The Committee also discussed the salary package of the judges, the privileges and immunities of the UPC and the division of costs and responsibilities of the UPC and the hosting Member States. Neil Feinson, coordinator for the IT workstream also confirmed that the contracts for the IT work had been awarded to T-Systems for the hosting work, Miggle for development of the website and Net Services Spa for the case management development.

The next meeting of the Committee will take place on 3 September 2015.

Frustratingly, there was neither a link to the 18th draft nor a conveniently attached Word or pdf document, which leaves us all wondering what the 18th draft looks like. This blogger has no doubt that many people will be sad to see the back of the 17th draft, with which they have been gradually familiarising themselves; he hopes that, if the 17th and 18th drafts are not entirely dissimilar -- as he suspects will be the case -- someone will prepare a handy concordance.

What happens to the UPC if the UK leaves the EU?

From the most recent Rouse newsletter comes some highly pertinent information and some thoughtful comment on a question that this blogger is frequently asked:

What will happen to the UPC [that's the Unified Patent Court] if the UK leaves the EU?

Will the planned referendum on the UK's continued membership of the EU delay the opening of the UPC? It appears the UK Intellectual Property Office has had this question in mind, since after months of speculation, it released the following statement to the IPKat blog, last week:

"The Government is committed to this project and wants the UK to be part of a European patent system that supports growth and fosters innovation. The Prime Minister was personally involved in the negotiations on the Unitary Patent regulations [so you know who to blame or bless, depending on your point of view] and the UPC Agreement and the UK is taking an active role in the current work to implement the new system.

There is still work to be done before the UK can ratify the Agreement, and I am committed to pressing ahead with this. It is the Government’s intention for our domestic preparations to be completed by Spring 2016".

Questions remain as to how much money the UK government will be prepared to invest in setting up the UK Divisions of the UPC before the planned referendum. The statement is notably silent on when the Government intends to ratify the UPC Agreement. Even if it is proposing to ratify in 2016, will it want to secure a venue, administrative staff and IT system for the UK Divisions of the Court before this date, or is it likely to defer this investment? Indeed, might it delay ratification itself until after the 2017 referendum leading to inevitable delay to the UPC? [this blogger assumes that a delay until after the referendum is the course of action that is both easiest to implement and simplest to justify, given the uncertainties and the need to avoid incurring wasted expense]

If the UK votes to leave the EU, it must also leave the UPC and UP although there is nothing to stop the new system continuing without the UK. However, it may well be less attractive to patentees and litigants if the UK is excluded. We would also expect the London branch of the Central Division to be moved elsewhere -- possibly to the Netherlands which is the fourth biggest patent filing country in the EU. However, regardless of the UK's participation, the new system will still offer costs savings for patent protection and litigation covering a territory that is home to hundreds of millions of consumers.

Report on possible amendments to UK law to accommodate new Unified Patent Court: little to report

It's a rather technical document, but it's quite short and it's definitely about patent litigation: published by the United Kingdom's Intellectual Property Office, it's called Technical Review and Call for Evidence: Summary of Responses. In short,

The Intellectual Property Office consulted on proposed changes to the Patents Act 1977 to introduce the Unified Patent Court (UPC) and the Unitary Patent between 10 June 2014 and 2 September 2014.

The Government received twenty responses to the Technical Review and Call for Evidence. These came from businesses which may own patents or use patented inventions, legal firms and patent attorney practices, and also some organisations representing particular business/technology sectors. Responses went into varying levels of detail, with some looking at the fine detail of the proposed legislation, and also those which looked at high level principles. Different sectors had different concerns and priorities.

You can read the document here.  If you don't want to read it, or haven't the time, don't worry: there will not be any legislative proposals springing out of it before the UK government has published its own formal Response document -- for which there is as yet no projected publication date.

What's interesting is the very small number of interested parties making responses, listed on page 7. Whether this is a result of poor publicity for the consultation process, apathy or people simply being too busy, it's a disappointing and does send out something of a message that most people aren't particularly concerned.

Ireland contemplates hosting a UPC Local Division

The British Isles are buzzing with excitement and intrigue with regard to Europe's (anything but) Unified Patent Court. First we had the announcement that the Law Society of Scotland and the Society of Advocates were to press for Scotland to have a Local Division of their own [on which see Darren Smyth's recent post on the IPKat here]. Then, via the Mason Hayes Curran newsletter, this blogger read of Ireland's intention to host a Local Division of the Unified Patent Court. In short,

Richard Bruton, the Minister for Jobs Enterprise and Innovation, has recently announced that Ireland has elected to establish a local division of the Court of First Instance of the Unified Patent Court (“UPC”) in Ireland. Ireland’s decision is significant in that the majority of Member States of the European Union may facilitate infringement cases through a regional division where a number of Member States collaborate to service such cases on a joint basis. In the case of smaller Member States, such infringement proceedings will have to take place in the central division of the UPC in Paris, London or Munich.

The business impact of this development is as follows:

• Once established, the Irish local division of the UPC will permit unitary and/or European patent proprietors to bring pan-European infringement proceedings in Ireland rather than abroad in appropriate circumstances thereby eliminating the need for multiple Member State proceedings and thereby reducing time and legal costs 

• Similarly, an Irish company that is in a patent infringement dispute with a unitary or European patent holder will be proceeded against in Ireland in respect of such infringement and not abroad, again potentially reducing time and legal costs; 

• An injunction obtained in the local division of the UPC in Ireland will be effective in all participating Member States; 

• Parties will also benefit from the increased expertise of the dedicated judicial panel to the UPC.

PatLit will keep its eyes open for further developments in this regard.

Secondary Legislation Implementing the Unified Patent Court: a consultation and workshops

The UK Intellectual Property Office (UKIPO) has organised a free webcast for this coming Wednesday 16 July at 4 pm for IP professionals on the following title "Consultation on Secondary Legislation Implementing the Unified Patent Court". 

You can get the details here. Follow-up workshops, run by the UKIPO, are being offered as follows:

• London, 30 July at 2 pm, hosted by UKIPO
• Edinburgh, 23 July at 2 pm, at the Law Society of Scotland
• Newport, 28 July at 2 pm, again hosted by UKIPO
• Manchester, 31 July at 2 pm, in the offices of Squire Patton Boggs LLP

Spaces are limited for the workshops, so please email UPCconsultation@ipo.gov.uk to reserve your place.

This blogger is conscious of the fact that, being based in the UK, he usually spots what is going on there but often misses parallel developments in other jurisdictions. He therefore wonders whether, and to what extent, the UPC's secondary legislation is under review in other UPC states. 

Consultation on UPC rights of audience: it's time for a discussion

With apologies to IPKat readers for the cross-posted subject matter (see the first item on today's Wednesday Whimsies, here), there's a storm brewing in the United Kingdom over who will have rights of audience before the Unified Patent Court (UPC) and what sort of training they will have to be put through if, despite their professional training and expertise, they are not technically "lawyers".

Following Darren Smyth's post yesterday on this subject on the current consultations, we learn from Vicki Salmon that

The Chartered Institute of Patent Attorneys (CIPA) and the UK Intellectual Property Office (IPO are holding a joint seminar to discuss this consultation on Wednesday 2 July 2014, in CIPA Hall. Registration begins at 4.30 in anticipation of a 5 pm start, with drinks and networking provisionally to start at 6.30 pm. There will be no charge. Although this has been planned for a while, it could not be advertised until the new draft was published and the consultation open -- so apologies for the short notice. The event will be recorded and that will be made available afterwards to those who could not attend.

The panel will include Mr Justice Birss and a representative from the IPO. Vicki Salmon will be chairing. To book your place, click here.

This blogger wonders the current consultation on rights of audience before the UPC is being discussed in other jurisdictions within the EU and, if so, how they are shaping up.  Does anyone know?

UPC: suddenly more popular than we thought?

Here's a surprise press release from Allen & Overy, published today and discussed by the IPKat and Merpel here.  The press release is reproduced in full below, with some comments in red:

"Research reveals growing business support for UPC – crown jewel patents opted in; move to Europe for major patent disputes

LONDON – Research published by Allen & Overy today demonstrates surprising support for Europe’s hotly debated Unified Patent Court, with almost three-quarters (74%) of those responsible for overseeing preparations for the new system expecting it to be positive for their company – and only 15% expect it to have negative consequences for them.

While on the big question of whether to opt in or opt out of the new system during its seven-year transition period, the majority of respondents are undecided on the bulk of their portfolio (68% on average), close to half (49%) of those surveyed said they would definitely opt in at least some of their patents, while only 15% say they would definitely opt out some.

Crucially, where businesses have made a decision to opt in, about 24% of their portfolio on average, they are deciding to opt in their most valuable, or crown jewel, patents. This suggests that, where it matters most for business, they will opt in.

As one Dutch head of IP strategy commented: “The economics of a single enforcement action outweighs the risk of Europe-wide invalidation.”

As this statement and the research suggest, despite the faltering reception the new system has received from companies across the globe, its impact is likely to be significant. The UPC will offer patentees the ability to obtain broader remedies than those currently on offer in the U.S., with a larger customer base impacted and injunctions that are easier, cheaper and quicker to obtain. Costs are estimated to be at least five times lower than in the U.S.

These advantages alone mean there is likely to be a shift towards Europe’s UPC as a forum of choice to rival the U.S. for major patent disputes. This is further supported by the majority of respondents indicating they will file unitary patents, as opposed to classic European or national patents, under the new system.

Despite its potential impact on business, the report also highlights an alarming lack of engagement among senior management on the UPC. Only 13% of those responsible for preparations for the new regime say their senior management are ‘fully engaged’ on the issue and appreciate the potential implications. One consequence of which could see businesses lose exclusivity for their products, or worse still, have their business or products locked out of the entire continent.

The scale of the change taking place means that companies cannot prepare for it overnight. If they don’t engage strategically with the changes now, they could find their competitors dragging them into UPC or national patent litigation on their own terms.

While the decision on what to do with a companies’ most valuable patents seems clear, what to do with a business’s less valuable patents is anything but. The 68%, on average, of their portfolio that business are still undecided on is largely made up of their secondary patents. Lack of clarity on costs is cited as the main barrier to being able to make decisions according to two-thirds (67%) of respondents. Only when this is clarified will businesses be able to undertake a proper cost-benefit analysis on their less valuable patents and whether it is more economically beneficial to opt them in or out".

At this point, the statistics stop and the comment begins:

"As well as clarity on costs, there is a pressing need to clarify a few areas where interpretations of the rules differ. This risks leaving companies with dangerous gaps in the understanding of the strategic implications of their decisions [The words 'risk', 'pressing need' and 'dangerous gaps' are interesting here: would the level of willingness to commit 'crown jewel' patents or to express confidence in the new system have been the same if these points had been addressed to respondents before they completed the survey? Or would they consider that the new system merely replaces one set of risks and uncertainties with another, exchanging 'known unknowns' for 'unknown unknowns'?]. In particular what happens to patents that have not been formally opted out of the UPC? These “opt-in orphans” can be litigated during the transitional period in either the national courts or the UPC. But it is not clear what happens after proceedings have been completed and whether national court proceedings could effectively opt them out of the UPC for the life of the patent. An extreme example would be a pharmaceutical generic company launching a revocation action against, for example, the Latvian part of a blockbuster patent. The company could then withdraw the action, having effectively forced the patentee out of the UPC system. This goes entirely contrary to the original intention to leave as many patents as possible in the system [Is this a temporary evil, as it were, which it's worth tolerating on political grounds for the sake of post-transitional period gains, or is it more serious than that?]. Another interpretation of the rules could also see the possibility of concurrent litigation in both the UPC and national courts which could lead to contradictory decisions if, for example, a national court upholds a patent and the UPC revokes it. This is the very type of clash the UPC is designed to avoid [but it's quite akin to the sort of contradictory judicial decision-making which patent owners and their foes have lived with since the European patent came into our lives: it's undesirable, certainly, but the fact is that most businesses have managed to cope]. Greater clarity is urgently required for these “opt-in orphans”.

Commenting, Geert Glas, head of Allen & Overy’s IP practice said: “Companies cannot afford to wait until they have an absolute and final answer to every question [Never was a truer word spoken: we still await absolute and final answers to many questions arising out of the now-mature Community trade mark system ...]. There is now evidence enough for them to decide whether or not to use the system [Unfortunately much of this evidence, being speculative, is of little probative value -- and may spark off different evaluations depending on the industrial sector concerned and whether it's at its green field stage or taping out into a series of incremental improvements over a long-established technology]. Time is running out before the UPC becomes active. Companies can’t afford to hesitate over one of the bigger strategic decisions their organisations will face for many years."”

UPC has its first premises - and new rules of procedure

Mr. Rubik, Hungarias model-inventor

The training centre for the future Judges of the UPC has been opened yesterday in Budapest.  According to the press release of the EPO:

Speaking about the Hungarian patent system, Miklós Bendzsel, President of the Hungarian Intellectual Property Office, said: "The system will be 120 years old in 2015. In the European innovation processes Hungary does not merely provide a creative workshop for products like Rubik's Cube, glass concrete or the intelligent surgical knife (iKnife); but our country is among the best as regards the contribution of IP intensive industries to the GDP and to employment." Mr Bendzsel added: "All this provides an excellent background for the operation of a Training Centre for judges working within the system established for the European patent with unitary effect. Budapest ensures a high quality framework for the nurturing of this new legal practice combining technical, legal and economic knowledge."

This blogger likes Budapest a lot and thinks this venue is well chosen.

Besides of this, the 16th draft of the rules of procedure is open for consultation.

Denmark and the UPC: breaking news

If Denmark's national aquarium looks like this, can
anyone imagine what its UPC building might look like?

From our friend George Brock-Nannestad comes news, fresh from Danish Radio station P1, that the current two-party Government in Denmark has entered into a political agreement with the parties outside the government Venstre, De Konservative, Liberal Alliance and SF (who broke away from the Government a couple of weeks ago) that a local department of the Unified Patent Court UPC) should be created in Copenhagen. There had previously been a proposal to create a Nordic local department. George adds:

Before getting further details about the agreement I consider this an attempt to make sure that the proposal for Danish ratification does not fall at the referendum that is to be made on the same date as the elections for the European Parliament on 25 May. The public debate has been very tiny, and it has been driven by the parties Dansk Folkeparti and Enhedslisten, who believe that how the UPC will actually function in practice is too uncertain to accept from the outset. 

An attempt to support ratification by the Government was tried a couple of weeks ago in newspaper debate, but it was completely overshadowed by the disruption of the Government. My own view is that there has been far too little information on the flood of patents that will submerge Danish SMEs: 10 times as many per year as the Danish validations of European patents as we know it.

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.

Pierre's guidelines: a new, improved version

Back in September, this blog drew the attention of readers to Unified Patent Court - Draft Rules of Procedure is a 306-page handbook, which includes the Agreement in the three official languages of English, French and German. At that time it was announced that a German version of the Draft Rules was being prepared by the law firm Reimann Osterrieth Köhler Haft and that the UK's Powell Gilbert was also named in this venture, which appears to be masterminded by French avocat Pierre Véron.

Piere has now told us that improved version of the handbook comprising a trilingual version of the 19 February 2013 rules in English and French has been added to the website at www.upc.documents.eu.com: it includes hypertext links to the legal documents referred to in the Agreement (e.g. Regulations on European Patent with Unitary Effect, Lugano Convention), internal hypertext links for cross references, as well as bookmarks for easier navigation. The direct link to this version is here (for ease of use, you can download this PDF file onto your computer and open it locally with Adobe Reader).

A fully trilingual version, including the draft Rules of Procedure in German, should now be available in November.

Draft Rules of Procedure for UPC: a helpful publication

Unified Patent Court - Draft Rules of Procedure is a 306-page handbook, which includes the Agreement in the three official languages of English, French and German.

The Rules in question are those found in the (original English language) 15th Draft of the Rules of Procedure, an unofficial French version of which has been prepared by Véron & Associés and is available at www.upc.documents.eu.com

The recent Commission’s proposal for a Regulation amending Regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I) 26.7.2013, COM(2013) 554 final 2013/0268 (COD) is also available on this website.

For a direct link to the handbook, click here.

A German version of the Draft Rules is being prepared by the law firm Reimann Osterrieth Köhler Haft and should be available in October. A third firm, the UK's Powell Gilbert, is also named in this venture. Pierre Véron adds that the firms are still working to facilitate simpler navigation in the document through the use of bookmarks, hyperlinks, etc., and that improved versions will be posted from time to time on www.upc.documents.eu.com.