“Germany is hesitant, but English should be additional language in UPC proceedings”

The Unified Patent Court is supposed to harmonise the patent landscape. But, as far as the language of proceedings is concerned, the new court is more like the Tower of Babel. First of all, the language of UPC proceedings will be the national language of the corresponding local division where the action is filed. In the case of the central division, proceedings will be held in the language in which the patent was granted.

As things stand at present, proceedings in Milan will probably be in Italian, in Paris in French, and in Lisbon in Portuguese. Proceedings at the divisions in Germany and Austria will be in German. However, Article 49 (2) of the UPC Agreement gives the UPC member states the option to allow one of the official EU languages as an alternative to the national language at their local divisions. Plaintiffs would therefore also have the option to sue, for example, in English.

Germany still hesitating

According to JUVE Patent information, so far only a handful of participating countries have made use of this provision. Austria has adopted English as an alternative language for its local division in Vienna, while Sweden and the three Baltic states have agreed to use English for the Nordic Baltic Regional Division. The Netherlands will also offer litigation in English and Dutch for the local division in The Hague.

The German government in Berlin, however, is still deliberating over the four German local divisions. In response to an enquiry from JUVE Patent, the Federal Ministry of Justice said a decision remains under consideration.

“The German government is deliberating over offering English at the country’s four local divisions”

Since the ministry will currently not comment on the reasons why the government is still examining the matter, speculation abounds within the German patent community. The ministry wants to maintain its high-quality jurisdiction, it says. The assumption is that when German judges hear cases in German, it results in better judgments.

Another theory is that proceedings in the native language could deter misuse of the new system. If German remains the main language of proceedings in Düsseldorf, Hamburg, Mannheim and Munich, foreign companies – especially NPEs from the mobile communication sector – might be less likely to use an attractive UPC system to exert pressure on the European industry.

The stakes are high

A third, and perhaps most important, reason could be economic protectionism. Parts of the German legal profession express great concern that foreign law firms will snatch business from the German top dogs if the country’s divisions hear cases in English. According to current forecasts, parties are likely to file most UPC lawsuits with the four German local divisions. Dutch and British law firms in particular are already chomping at the bit to get more involved.

Admittedly, the choice of language in first-instance proceedings has a major impact on the entire system, because it is automatically also the language of appeal. In fact, there are good reasons to stick to the respective local language as the main language for UPC proceedings. After all, the UPC must not mutate into a court that is only for large-volume international disputes between globally active corporations. It must remain attractive for small and medium-sized businesses, which is where the new court’s biggest image problem currently lies. The new court will only be attractive to SMEs if they can conduct proceedings in their own language.

“The choice of language in first-instance proceedings will impact the entire system”

But when it comes to proceedings as part of international disputes, English must be considered as an alternative. As things stand, this would only be possible in Germany, France, Italy and other participating countries if the plaintiff and defendant agree under Article 40 (3) of the UPC Agreement. The relevant local division must also agree. In principle, this option is open to all first instances, and the German government also refers to this option in its discussions.

But how realistic is such an agreement between two opponents that are heading to court? It seems just as likely that parties will use the language issue as a strategic means to delay a decision by the court on invalidity or infringement.

No unity

This hesitation does not suit Germany which, as a market leader, is expected to move forward energetically. But this protectionist attitude is probably not due to the judges of the four German local divisions. Peter Tochtermann and Ronny Thomas, the presiding judges of the local divisions in Mannheim and Düsseldorf, sit on the UPC presidium. Here, English has long been the official internal language.

Matthias Zigann and Tobias Pichlmaier, the two judges of the Munich local division, openly say that they would like to hear cases in English. Even in Hamburg, English does not seem to be a problem. Less self-confident, however, are large sections of the German legal profession, who prefer to negotiate in German.

The German government’s ambiguous stance is all the more surprising because, at the end of April, it launched a new legislative initiative to introduce commercial courts and English as the court language to regional courts in Germany. Of the initiative, Federal Justice Minister Marco Buschmann says, “We are making the ordinary courts in Germany more attractive for major commercial disputes”. His ministry is also in charge of the UPC, but is apparently still looking for unity when it comes to English as the court language.

Pressure from outside

Primarily, it is the Dutch local division in The Hague putting pressure on the local divisions in France, Italy and Germany. This is due to its judges’ assertiveness and a clear commitment to quality, good service and English as the language of proceedings.

It is appropriate to establish English as an additional language because it is appropriate for an international court to speak one language. The move would give Asian and US companies especially further confidence. After all, many have never understood the European patent system, with companies from these regions hoping the UPC will bring clarity.

“It is appropriate for an international court to speak one language”

English is also the language of science. In many proceedings before German patent courts, it is already common for parties to translate documents for their foreign clients. Sometimes parties even exchange these with their opponent to speed up proceedings. Court cases in English would make UPC litigation more efficient and presumably less costly. Furthermore, a uniform translation practice would benefit the quality of case law.

It would therefore be logical for the UPC states to jointly agree to allow English as an additional language of proceedings. If the German government, which has always been a driver of the UPC project, were to decide this quickly, it would also send a signal to the other UPC countries and to the global patent community that the UPC is attractive for litigation.

Regardless, one does not have to be a great prophet to predict that, like at the European Patent Office, English will sooner or later become the number one language of proceedings at the UPC.