The Unified Patent Court
State of play of implementation work
Chair: Margot Fröhlinger (EPO)
Senior Judge of Appeal, Svea Court of Appeal
Preselection and training of UPC judges
Scope of the preselection
Criteria for eligibility
In order to become a legally qualified judge of the UPC (LQJ) one must possess the qualifications for appointment to judicial offices in a contracting member state, as well as have proven experience in the field of patent litigation. [ 2 ] The latter may be acquired by training. [ 3 ]
Technically qualified judges of the UPC (TQJs) must possess a university degree and proven expertise in a field of technology, and furthermore have proven knowledge of civil law and procedure relevant in patent litigation. [ 4 ]
All judges must have good command of at least one official language of the EPO. [ 5 ]
Outcome of the preselection
About one third of the applicants expressed interest in a position as a LQJ. The remaining applications regarded positions as a TQJ.
Among the LQJs, some 170 were deemed eligible, i.e. fulfilling the above criteria and demonstrating a high level of both knowledge of substantive patent law and experience in patent litigation. Moreover, more than half of these met even higher standards and where therefore deemed particularly eligible.
Some 180 LQJs were deemed eligible with training, i.e. formally eligible but in need of training. The need for training regarded either knowledge of substantive patent law or experience in patent litigation, or both.
As for the TQJs, a very large number was deemed particularly eligible, without any need for training.
Although there is so far no detailed calculation of the number of UPC judges to be appointed, one may assume that the number of candidates deemed particularly eligible well exceeds the seats to be filled (both in respect of LQJs and TQJs). Against this background one might question the need for basic training in respect of knowledge of substantive patent law and experience in patent litigation.
However, such training will be needed in order to ensure that seats can be filled in local and regional divisions of contracting states, from which there are no (or only very few) LQJ candidates eligible without training. [ 6 ] Furthermore, the appointment of judges must ensure not only the best legal and technical expertise, but also a balanced composition of the Court on as broad a geographical basis as possible[ 7 ].
This being so, intensive basic courses on substantive patent law as well as patent infringement litigation procedures will take place at the UPC training centre in Budapest, starting early 2015. Some 20 candidates are foreseen to participate. The basic training will be followed by court internships at patent courts of contracting member states (Germany, Netherlands and the United Kingdom have made or raised the prospect of offers of such internships).
Training in procedural law of the UPC, etc.
Other types of training, with the participation of all judges to be appointed, will also be needed. This training should encompass the procedural law of the UPC, [ 8 ] including mock trials, as well as workshops on topical issues, "judgecraft" and drafting of judgements. It is assumed that these workshops will take off during 2015 and enable candidates to take part, also before the formal appointment of judges. Finally, there is a need for arrangements for language training.
Next steps: submission of formal applications
During 2015 the informal pre-selection is expected to be followed by the formal procedure of appointment of UPC judges. It should be borne in mind that applicants during the formal procedure will have to submit new applications – they will not be able to rely on applications made in response to the call of interest during the preselection. Information on deadlines etc. for formal applications will be available on the UPC website. [ 9 ] It is the view of the panel that an electronic form should be used for the formal applications.
[ 1 ] Joachim Bornkamm, Toon Huydecoper, Sir Robin Jacob (chair), Carl Josefsson, Sylvie Mandel, Vittorio Ragonesi and Henrik Rothe.
[ 2 ] Art. 15(1) and (2) of the Agreement.
[ 3 ] Art. 2(3) of the Statute.
[ 4 ] Art. 15(3) of the Agreement.
[ 5 ] Art 2(2) of the Statute.
[ 6 ] See Art. 8(2) of the Agreement: panels of local divisions in contracting member states with less experience of patent litigation will sit in a composition of one national and two non-national LQJs. Art. 8(4): panels of regional divisions will sit in a composition of two national and one non-national LQJ.
[ 7 ] Art. 3(3) of the Statute.
[ 8 ] The Agreement and Rules of Procedure.