Tuesday, 3 November 2015

Rigorous and fruitful? The UPC's 18th, and almost final, draft Rules

The Unified Patent Court website carries a notice that reads like this:
At its last meeting [the most recent meeting, for sure, but this blogger is certain that it isn't going to be the last] the UPC Preparatory Committee adopted the Rules of Procedure of the Unified Patent Court, subject to some further adaptations once the Committee has decided on the court fees. This is a major milestone in the progress of the Committee's work.

The agreed text is draft no. 18 which shows that the text has undergone a rigorous process of development and testing. The Rules of Procedure are the result of a successful and fruitful collaboration between the Preparatory Committee's Legal working group and the Drafting Committee. This will underpin the Court's framework and functioning. The work has benefitted strongly from comments from stakeholders submitted during the written consultation and the oral hearing.

The Rules will be an essential element in the future training of judges of the Court and the decision of the Committee will ensure a smooth transition from the development to the active planning of such training.

Those interested in the Court's operation should familiarise themselves with the text. The UPC-Rules-of-Procedure.pdf is available.
The draft, inclusive of a brief summary of the events leading up to it and a couple of attractive flow charts at the end, runs to 142 pages, so do remember to load up your printer and check your cartridge before you print it out.  The rules end at no.382, but there are more than 382 rules since some rules are already bearing letters in addition to numbers.  The fees are of course still blank.

It is not only these Rules which will govern the outcome of litigation since, in some cases, the Rules of the Court of Justice of the European Union will be brought to bear. Thus:
Rule 266 – Preliminary references to the Court of Justice of the European Union

1. At any stage of the proceedings where a question is raised before the Court and the Court considers that a decision on the question by the Court of Justice of the European Union (“CJEU”) is necessary before the Court can give judgment, the Court of First Instance may and the Court of Appeal shall request the CJEU to give a ruling thereon.

2. The Court shall in requesting a ruling follow the procedure set out in the Rules of the CJEU.

3. If the Court requests the CJEU to apply its expedited procedure the request shall in addition set out:

(a) the matters of fact and law which establish its urgency; and

(b) the reasons why an expedited ruling is appropriate.

4. The Registrar shall as soon as practicable forward the request and any request to apply the expedited procedure to the Registrar of the CJEU.

5. The Court may stay the proceedings. Where it does not stay proceedings, it shall not give judgement until the CJEU has given a ruling on the question.
Given the short life expectancy of patents and the length of time a reference to the CJEU can take, one hopes that the expedited procedure will be the norm in cases where the litigated patent has not already expired or lapsed.


Anonymous said...

Can't say I think much of the Preparatory Committee's reasoning here.

The Committee says "The agreed text is draft no. 18 which shows that the text has undergone a rigorous process of development and testing." I cannot agree. 18 drafts shows that the text had undergone an extensive process of development and testing, perhaps, but cannot show whether that extensive process was rigorous, or indeed useful. It is the nature of the review process, rather than the quantity of drafts produced, which provides the necessary rigor.

Experience tells me that repeated cyclical review among the same set of reviewers tends to generate extensive correspondence and conflicting revisions all focussing on a small set of potential issues, which become dear to those who first notice them. A large number of drafts rather suggests that a subset of reviewers could not agree on the right approach, or that mistakes were made or misunderstandings occurred which required correction, or that issues were forgotten and then rediscovered, or that repeated failed attempts were made to address a particular problem.

Excellence in drafting and review enerally results in a small number of drafts before a final draft is produced, each draft having been exposed to the widest possible number of reviewers, the feedback of each of which has been taken into account in a careful and considered way before the next draft is circulated.

I would have had more faith in the rigor of the process if, for example, four drafts had been needed to reach agreement.

Anonymous said...

A lot of numbers are missing, so the rules are much less than 382

Rules OK! said...

There are still more than 382 rules, since many of the numbered paragraphs contain a multiplicity of rules.