UPC: The John Doe of Patent Law
December 16, 2021
The Unified Patent Jurisdiction is coming! It is announced that the system will be operational by 2022. Great! But no information on its implementation, European governments seem to be barely aware of it, ignoring the issue (not really "European" by the way)... What is the problem?
Example 1: who are the candidate judges? No public list, I even heard that the French government doesn't have it. So it's interesting to do polls with JUVE (good initiative), but it would be better to know the "official" candidates.
Example 2: who will take over the Presidency of the Jurisdiction? A political question, of course, but one whose importance cannot be denied, and everyone knows it. Will it be a co-opted international civil servant or a real magistrate? In any case (sorry, but this is also important), of what nationality should this future Judge be? No answer there either.
Example 3: what about the central division for the UK? Then one could imagine locating everything in Paris, as the EPO center is in Germany. This would be a more efficient system and, without any chauvinism, a nice "showcase" for the future court, especially since the French courts are efficient in patent law and the international chamber set up by the Paris Court of Appeal is a good omen for an international court. Now, some will accuse (insult) me here, because I am French, but, after all, why should I not be in favour of an efficient system? Everyone sees no harm in it. That being said, here too, there are discussions in the corridors (which is the primary meaning of the term "lobbies"), no information, and new candidates are even being considered to take in bits of the English division. Can we then talk about efficiency? I doubt it. But, having said that, the reader has understood that little information is available, at least to my knowledge.
We are, according to some, a few months away from a revolution for the European patent system and I have the feeling, perhaps very personal, that I am swimming in the fog with many of my peers (and the governors). Perhaps it is time to bring this debate into the public arena? Otherwise the legitimacy and therefore the success of the future jurisdiction will suffer.
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Knoblauch
Paul Maier is planned to be the first President of the UPC
Extraneous Attorney
There is another issue which has the potential to cause - to quote Mr. Dhenne's exact words - "the legitimacy and therefore the success of the future jurisdiction" to suffer. That issue is that nobody knows whether the contemplated move of the London section of the Central Division to another location is even in accordance with law in the first place. If that is not the case, then whoever is the first to lose a huge amount of money in a case which should have been adjudicated before the London section could rush to the ECJ and argue that the decision was handed down illegally and is therefore null and void. It is hard to picture a rougher start for a fresh international court, is it not?
IPfrog
i think for example 2, you can find an indication in articles 13/14 of the statute of the UPC perhaps it's time to open the books :) ?
Opaque business
I understand the problem with London being named in the UPC Agreement as a matter of international law of treaties, and may even sympathise with the view that there my have been some opaque business in recent times (BVerfG decisions on questions that weren't asked, "Declarations" and the like) to get us here, but I honestly cannot see the issue of the London branch being a matter referred to the CJEU after the court has started. Why would the judges of the court (the greatest of respect to them, whoever they may be) refer a question undermining the validity of their own court, and under what provision of EU law given that it is based on an international agreement? Why would the CJEU (with the greatest of respect to the CJEU) make an adverse decision of such embarrassment to the EU, when politically the EU machinery is desperate for this court to get going? I am not an EU specialist and many who read this will know more than I do about EU law and procedures -- these are genuine questions.