UPC – The Error in the UPC System

Posted: September 16th, 2015

CAUThe error in the new UPC system, by Christof Augenstein, Preu Bohlig & Partner

The Contracting Member States promised to the users of the new Unified Patent Court (UPC) that the proceedings and judgements will ensure highest quality. To this end, the Agreement on the Unified Patent Court (UPCA) requires that judges should comply with highest standards in patent litigation. Unfortunately, representatives do not need to fulfil this standard, as the new draft for the European Patent Litigation Certificate (EPLC) confirms.

The UPC will establish a completely new system for civil law proceedings. It will be the first court on a European level that decides about claims between private parties. Therefore, it will not only harmonize partly national procedural rules, but also needs to harmonize completely different legal traditions. This will be a challenge to every lawyer that is in charge of any matter at this new court.

Read the entire contribution here.

5 Responses

  1. Leo Steenbeek says:

    There is indeed a serious flaw with regard to representatives, as the Article 48(1) representatives don’t have to have proven experience in the field of patent litigation. They don’t even have to know about patents. So, every divorce attorney who has never seen a patent before, may represent clients before the Unified Patent Court.

  2. Christof Augenstein says:

    True, but the divorce attorney does not get a certificate that she or he has experience in patent litigation. Thus, the divorce attorney in practice won’t try to attract parties for the UPC, whereas the owner of the EPLC will.

  3. D.X.Thomas says:

    Is this simply the ply of a lawyer who sees his representation monopoly endangered?
    One could say for the same token, patent are technical items, and knowledge of technique is a prerequisite to deal with them. Are then lawyers really qualified for discussing technical matters?
    It should also not be forgotten that the judges at the UPC will not exclusively be legally qualified, but there will also be qualified technical judges.
    The aim of the UPC is to avoid the implication of experts and counter experts, so that it seems wholly justified that qualified representatives will be able to represent before the UPC, provided of course they have acquired some extra qualifications.
    No more, but no less than this is required and it is good so!
    A bit more modesty would not harm.

  4. Parties and their inhouse representatives are not as stupid and willingless as the article suggests it. They will carefully chose the lawyers and/or patent attorneys for their representation at the UPC.
    The provisions in the Agreement consequently reflect that we live in a free market where everyone has the right to chose the representative he deems most suitable for his firm and the litigation lying before him.
    So where is the problem with the EPLC and the other provisions in the proposal?
    On the other hand, having bad judges would constitute a neckbreaker for the new system, because they decide and it’s – at least for the defendant – not up to him to chose the judges, but only to chose his representatives.
    Therefore, I agree with the Preparatory Committee and their proposal. There is surely no “error in the system” in ensuring a high quality of judges, both legally and technically qualified judges.

  5. Christof Augenstein says:

    Given the reactions I have received I want to clarify several allegations, which are not true given the content of the article.
    The article is not about lawyers against patent attorneys (see its last sentence).
    I am also not saying that every lawyer should represent parties at the UPC.
    The article is about two statements of the Preparatory Committee, which indeed upset me.
    It’s also not about stupid parties. I share Konstantin’s view that experienced clients know the system and know how to choose their representative. That is also the reason why I am not afraid of the new system, because the clients and patent attorneys I cooperate with appreciate having an experienced lawyer on their team. However, SMEs having a patent dispute only once in a while might not have sufficient inside.
    It’s also true that there are technical judges, but only one (if at all) per panel, so that legal judges will always be the majority to decide.
    The education of judges and representatives is the same in many countries and I feel that helps a lot to properly discuss cases before a court. I also think it’s a given that litigation before the UPC is more complex than before national courts. It’s only the Preparatory Committee denying this fact.
    Coming back to the allegation that more than 120 hours is “unreasonable” I invite everyone to discuss how these 120 hours should be allocated to the subjects to cover (Rule 3). I think it’s clear that spending more time on these complex subjects cannot be “unreasonable”.

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