Start of the Provisional Application Phase and first committee meetings

The Provisional Application Phase of the Unified Patent Court started on 19 January. Under Article 1 of the Protocol on Provisional Application this means that the Court now exists and has legal personality and that the Administrative Committee, Budget Committee and Advisory Committee have come into existence. The first meetings of these committees were held in February and were used to adopt a whole series of regulations, necessary for the Court to become fully functional. This means that the UPC is well on track to open later this year.

The Administrative Committee and its rules

The Preparatory Committee, which has been doing all the preparatory work on the UPC since February 2013, has now been replaced by the Administrative Committee. Both consist of representatives of the Contracting Member States. The Administrative Committee is the non-judicial management of the UPC. Probably its most important task is the appointment of the judges, on the basis of a recommendation by the Advisory Committee. The Administrative Committee held its first meeting on 22 February 2022. Alexander Ramsay (Sweden) was elected as chairperson and Johannes Karcher (Germany) as Deputy Chairperson. At that meeting a number of rules were adopted and the members of the Budget Committee and the Advisory Committee were appointed. Of course, these rules were not drafted on that day, they had been prepared by the Preparatory Committee and their text was often decided by the Preparatory Committee years ago, in 2015 and 2016.

The Administrative Committee has adopted rules of procedure, which determine its operations. These rules are quite detailed. Meetings are held at the seat of the Court of Appeal in Luxembourg, but may be held elsewhere during the provisional application phase. Of course, there is a close link with the judges; the President of the Court of Appeal takes part in all committee meetings and the President of the Court of First Instance in those meetings that are relevant for that court. They may be assisted by members of the Presidium. The chairpersons of the Budget Committee and of the Advisory Committee shall also attend. There will also be an observer from the European Commission, who can take part in the discussions, but not in the vote. It is ensured that he can express his position on any matter related to EU law. Article 5 section 6 provides that any EU Member State may be invited to appoint an observer “until its ratification or accession takes effect”. This provision confirms that only Contracting Members States that have ratified the UPC Agreement have a voting right in the Administrative Committee. Any member or observer may ask the Chairperson to put a question on the agenda. The languages of the Administrative Committee are English, French and German, interpretation will be provided.

The Administrative Committee also adopted special rules for the period of provisional application, which allow for more flexibility in its operations. Some of the management functions of the President of the Court of Appeal are performed by the Chairperson of the Administrative Committee. He may also propose a more simplified language regime, which probably means everything will be done in English.

The Budget Committee and its rules

The Budget Committee is responsible for all financial aspects of the Court. It held its first meeting on 23 February 2022, where its Rules of Procedure were adopted. This committee also consists of representatives of the Contracting Member States. The Rules are very similar to those of the Administrative Committee, but there is no provision on an observer from the European Commission. However, the committee may invite observers at its discretion. There are also similar special rules for the period of provisional application. A draft budget for the provisional application phase was also adopted, based on “pragmatic and prudent estimates”, assuming that this phase will take 8 months (which again confirms the intention to have the Court open for business on 1 October 2022).

The Administrative Committee also adopted the very detailed Financial Regulations in its 22 February meeting, which regulations are managed by the Budget Committee. These rules inter alia deal with advance payments and contributions by Member States needed for the operations of the Court. At the end of the transitional period (the first 7 or 14 years) the Court should have become self-financing, but initially it will depend on financing by the Member States. Of course, in view of the value based Court fees and depending on the number of cases, this may even be achieved earlier. The budget for the Court will be drafted by the Presidium and submitted to the Budget Committee. Payments by the Court are the responsibility of authorizing officers under the supervision of the Presidium. The Registrar is responsible for the Court’s accounts. There are also rules on procurement, because this is not automatically covered by EU or national law. If a Member State is more than one year late with paying 25% of its contribution, its voting rights in all committees are suspended. According to the decision on the financial management during the provisional application period, first the Chairperson of the Administrative Committee will perform the role of authorizing officer and then, once appointed, the Presidium of the Court. It also deals with payments by the Member States and reimbursement of previous advance payments made during the preparatory period. There will be a budget that allows for the initial payments of judges and staff once they are appointed.

The Advisory Committee and its rules

In its first meeting the Administrative Committee also appointed the Advisory Committee, which mainly consists of acting and retired judges, two lawyers and a patent attorney. The committee currently has 13 members and 3 alternate members (from France, Germany and the Netherlands), but more can be appointed when necessary. In its first meeting on 24 February the committee elected Dutch patent litigator Willem Hoyng as its Chairperson. In the preparatory period there already was an Advisory Panel, which operated on the basis of Rules on the pre-selection procedure of judge candidates of the future UPC, adopted by the Preparatory Committee on 30 November 2015. This Panel assisted the Preparatory Committee and the Human resources and training working group in assessing the qualifications and experience of candidate judges and in setting the individual training requirements of the candidate judges. Training courses for candidate judges with limited experience in patent litigation were held in Budapest. Now the Advisory Committee has taken over. Its tasks are assisting in the appointment of judges and setting up the training framework and advising on the qualification required to become a representative at the UPC. The first and most important task of this committee is interviewing the candidate judges and advise the Administrative Committee on the appointment of judges, which is currently underway. In the future, the committee will also advise on the suitability for re-appointment after each term of 6 years of service of a judge. The Advisory Committee held its first meeting on 24 February 2022, where it adopted its rules of procedure and special rules for the Provisional Application Period; the special rules ensure that the committee can operate expediently, which is needed for the selection of judges.

Members of the Advisory Committee act independently from anyone, including the Contracting Member State that proposed them. The President of the Court of Appeal and the President of the Court of First Instance can attend the committee meetings, but do not have a right to vote. They may be assisted by members of the Presidium and other court officials and staff. Other participants may be invited by the committee. Decisions are preferably taken on the basis of consensus and otherwise by a two third majority, provided the majority of members is present. Votes are recorded and the minority may request a statement to be recorded. The committee shall prepare a shortlist of candidate judges on the basis of written documentation, only those candidates will be interviewed. The interviews will be held in English, German or French, the official EPC languages. This will result in a list of twice as many candidates as there are vacancies, so the Administrative Committee can make a selection. The recommendation shall include the language skills of the candidates and for the technically qualified judges their fields of technology. The opinion on a candidates’ suitability to perform the duties of a judge will only be made available to the Administrative Committee, to the candidate insofar the opinion is referring to him, and to the Court for the inclusion in the personal file of that candidate, but will otherwise remain confidential.

Conditions of service for judges, registrar and staff

At its first meeting the Administrative Committee also adopted the Regulations Governing the Conditions of Service of Judges, the Registrar and the Deputy-Registrar of the Unified Patent Court and the Staff Regulations. The Conditions of Service include ethical provisions on independence, impartiality, integrity, diligence and freedom of expression and association. These include a rule that in the performance of their duties with the Court, judges shall neither seek nor accept instructions or assistance from any government, authority, organisation or person. This also applies to the Registrar and the staff. Judges also shall not hold any political or public office. This was already included in more general wording in article 17 of the UPC Agreement. It may seem obvious, but for an international court the judges of which may come from different legal cultures, it is good to have this confirmed explicitly. The prohibition on holding a “public office” should probably be interpreted to relate to the executive, either at national or at EU level. After all, the court will predominantly start with part-time judges, who are also judges in a national court. That apparently is not a public office within the meaning of the Conditions of Service. The judges shall take reasonable steps to maintain and enhance the knowledge and skills necessary for judicial office at a specialized patent court.

Article 13 is a limited exception to the immunity granted to judges by article 8 of the Statute and article 9 of the Protocol on Privileges and Immunities, since it provides that judges, the registrar and the deputy-registrar may be required to reimburse or compensate the Court, either partially or in full, for any financial loss suffered by the Court as a result of gross negligence, malice or fraud except where this loss results from the content of a judicial decision the judge concerned has taken part in. It is not clear how this will be enforced, probably this needs to be done in an appropriate national home court of the defendant.

Article 16(7) provides that judges are not allowed to be an EPO examiner or member of an EPO Board of Appeal, but there are no further incompatibilities. The basic monthly salary for a Court of First Instance judge is € 18.089 and for a Court of Appeal judge € 20.062, plus allowances and expenses. Article 49 provides for disciplinary measures by the Presidium against judges who violate their obligations., article 39 of the Staff Regulations contains similar provisions. Such measures and other administrative decisions may be appealed to the Administrative Committee by judges and registrars. For other staff there is an option to appeal to an internal appeal board. This may be problematic, since the Administrative Committee is not a court and there is no provision on further appeals to any court. For the Internal Appeal Board article 40 of the Staff Regulations provides that the chairman and members of the Internal Appeal Board shall be completely independent in the performance of their duties and that they shall neither seek nor accept any instructions, but that may not be sufficient.

Representation by lawyers and patent attorneys at the UPC

Finally the Administrative Committee also adopted the Rules on the European Patent Litigation Certificate (EPLC) and other appropriate qualifications on 22 February 2022. These rules deal with the rights of representatives in UPC litigation as governed by article 48 UPC Agreement.

European Patent Attorneys may act as representatives, provided that they obtain a European Patent Litigation Certificate or other appropriate qualification. The representative needs to maintain his registration as a European Patent Attorney with the EPO. There will be a list of entitled representatives at the Court registry. The requirements for an EPLC course are provided in the Rules. The course will have a minimum duration of 120 hours. Universities and non-profit educational bodies of higher or professional education can obtain an accreditation for an EPLC course from the Administrative Committee. A bachelor or master degree in law is also considered appropriate qualification.

During a one year transitional period certain other courses and certificates, listed in the Rules, will also constitute appropriate qualification. Transitional qualification can also be based on having represented a party without the assistance of a lawyer in national patent litigation (which happens rarely) or having acted as a judge in at least three patent infringement actions in the last five years (which will also be rare). According to article 16 a registration invoking the transitional regime will be permanent, so no need to obtain additional qualification.

There are no further rules on the right or representation by lawyers, which is therefore exclusively governed by article 48 UPC Agreement. This simply states that parties shall be represented by lawyers authorised to practise before a court of a Contracting Member State.

Conclusion

All of this means that as of 24 February all the internal rules that are needed for the Court to start its operations are in place. Of course, the Rules of Procedure still need to be adopted by the Administrative Committee, but this is expected to happen this spring. There will be some last amendments of the 18th draft, the text of which became available in March 2017, but these will be limited. Some further rules relating to the proceedings also need to be formally adopted, but everything seems to be well on track, with interviews of candidate judges currently ongoing and the appointment of the UPC judges scheduled for May.

This means that there is quite a chance that the sunrise period will start on 1 July 2022, the UPC will open for business on 1 October 2022 and Unitary Patents will be available as of that date. Anyone with an interest in patents and patent litigation now needs to be prepared for the Unitary Patent and the Unified Patent Court.