Europe debates the redistribution of UPC cases

In an open letter published today, Bardehle Pagenberg comments on EPLAW’s proposals for possible measures to achieve a more balanced distribution of cases across all divisions of the UPC.

The background to the statement is a discussion among UPC member states on the topic at the February meeting of the Administrative Committee. Following this, the Advisory Committee called on the four organisations with observer status at the UPC — BusinessEurope, EPI, EPLIT and EPLAW — to identify reasons for the lack of balance between the UPC divisions and to propose measures that could ensure a more balanced distribution of cases.

The European Patent Lawyers Association then asked its members to submit proposals in mid-March. EPLAW had already named a number of measures in this email appeal. However, the EPLAW board wants these to be understood as examples only rather than an exhaustive list.

Bardehle Pagenberg is now publicising these proposals in the open letter and taking a position. The law firm disagrees with some of the proposals set out by EPLAW.

Difference of opinion

For example, one suggestion is to limit the number of judges’ panels to one per division. Furthermore, the UPC could mandatorily distribute new cases or redistribute cases to other divisions, depending on caseload. The UPC could also change the allocation of judges from the international pool to cases in any given division, thus either limiting the representation of local judges to one member per panel or completely abandoning the role of local judges and drawing all judges from an international pool regardless of location.

These measures, Bardehle argues, would artificially limit the user’s choice. And the two latter suggestions “would impair predictability and reliability and make risk management more difficult.”

EPLAW’s idea to offer the parties a transfer to another local or regional division if it is likely that the case would not be decided within a given timeline is, Bardehle considers, unrealistic “because at least one party is usually interested in a delay and will thus oppose a transfer”.

Matters of concurrence

However, Bardehle also welcomes other EPLAW suggestions. In their letter, the law firm states it would have no issue with the proposal to allow declarations of non-infringement to be filed in local divisions instead of central divisions. Since they are rare, Bardehle argues, this would not change much.

Furthermore, the law firm agrees with the suggestion to change the allocation of judges so that, for instance, German judges spend more time at a non-German division and non-German judges are more permanently allocated to a German division. “We welcome this measure. It would allow for a better sharing of experience and training among judges. It would strengthen predictability and reliability for users. It would create a truly European team effort,” writes Bardehle.

At the same time, the signatories of the letter propose additional measures which are partly already applied by certain divisions. These are to use an international judge as the judge rapporteur and to continue to allow judges to broadly use suitable forums to present their views and style and to raise their profile among the global community.

In a statement to JUVE Patent, the firm emphasised that its open letter was not a coordinated position paper drawn up in conjunction with other law firms. The letter, which it had previously sent to EPLAW, represented solely the views of Bardehle Pagenberg. However, according to information obtained by JUVE Patent, other law firms have also submitted comments to EPLAW. JUVE Patent is not yet aware of their positions, however.

Not an isolated case

The discussion about the strong dominance of the German divisions is nothing new. It began shortly after the launch of the UPC in June 2023. Even in the first few months of its existence, it became apparent that the local divisions in Munich, Düsseldorf and Mannheim, as well as Hamburg, were attracting the most cases.

Last week, Peter Tochtermann, presiding judge of the Mannheim local division, made public the fact that the issue continues to concern the court’s Presidium. Tochtermann is also a member of the UPC Presidium.

At the beginning of a very well-attended public hearing between ZTE and Samsung, Tochtermann called for more cases to be referred to the non-German divisions. He pointed out that the German divisions are already very well utilised and praised the expertise of his colleagues from the other UPC countries.

In many discussions with JUVE Patent, Dutch and French law firms have expressed their concern regarding the dominance of German divisions in the UPC system.

This concern over balance also stems from the tangible business interests of European patent firms. In the first two and a half years of the UPC, German law firms in particular have gained a significant toehold in UPC cases. (Co-author: Konstanze Richter)