“Harmonisation of jurisdiction could only be achieved through a UPC”

JUVE Patent: The European patent scene eagerly awaits the case law on the interpretation of the CJEU’s FRAND rules. What role do the French courts play in this?
Nathalie Sabotier: So far there is a decision from the CJEU, but the interpretation of the judgment is handled very differently by the national courts. Of course, we judges exchange views with European colleagues and consider their arguments, for example in the Birss ruling [in 2017 on jurisdiction and FRAND]. But the only way to actually achieve harmonisation of jurisdiction would be through a UPC.

Carine Gillet: Not many FRAND cases are currently pending in the Tribunal Judiciaire de Paris. But there have been recent developments in case law, for example in some decisions of our section.

Nathalie Sabotier ©Nathalie Sabotier

Do UK court decisions receive more attention? UK judges are seen more frequently at conferences, for example.
Sabotier: Exchanging views with others is very important for our work. But as judges we have to remain neutral.

Gillet: The language at conferences is usually English, so UK judges have an advantage because it’s their mother tongue. We always ask ourselves if our English is good enough to take part in such conferences. But giving a presentation in English is only a small part. It’s more difficult to answer the questions in a linguistically-adequate way, or to participate in a discussion, for example. But it is also important to note that attending conferences is not really part of the French judicial culture. This is a pity for patent law, as it is very interesting from a technical point of view.

Sabotier: In the UK, marketing their court is part of a judge’s job. In France, the independence of judges is the highest ideal, which leads to more restraint.

Gillet: In view of the upcoming UPC there are new opportunities for IP judges. Of course, case numbers will develop slowly, but the idea for this court is fantastic.

Is the UPC still important, even without UK participation?
Gillet: Absolutely. The UPC is an incredible opportunity for the European patent market, which is still a very large market even without the UK.

Sabotier: It will take time for it to become successful, though. Initially, it is likely that fewer cases will be heard before the UPC, and these will probably be brought by large companies rather than by small- and medium-sized enterprises.

Recruitment for the UPC judicial positions revived in summer 2019. Are French judges interested in participating in the UPC?
Gillet: In France there are currently about 20 judges who work intensively in patent law. Nine of them work in the first instance. Of course, the UPC is a very interesting opportunity for all judges who are already working in patent law.

Sabotier: As a judge, you have to familiarise yourself intensively with patent law. But the profession is highly fascinating and extremely varied. Very intelligent people work in this field and the whole discussion takes place at a very high level. That is of course very attractive.

Why doesn’t the French judicial system encourage judges to specialise in particular fields?
Sabotier: To forge a career, French judges must change chambers every few years. This ensures they remain independent. But the change is often accompanied by a change in the type of work, because judges are appointed where there is a need.

For example, in my previous position at the Cour de Cassation, I had a focus on labour law. At the time of my transfer, I wanted to return to the first instance in order to be able to immerse myself in the content of the cases again. As there was a vacancy in the 3rd section, which specialises in IP, I came here.

Gillet: For me, I’ve been in the IP section of the first instance courts in Paris for five years. Before my role here, I worked at the court in Bobigny, which specialised in IP at that time. Because it’s close to the airport, it meant that I often dealt with the Saisie Contrefacon (a tool, used in France, to collect evidence of infringement of a patent) of export goods. That sparked my interest in IP.

Above all, what interests me about patent law is the technical aspects. It’s not for everybody. It’s a very complex subject and you have to work your way into it.

What are some recent developments in French patent litigation proceedings?
Gillet: Of the approximately 1,500 IP proceedings in our section, about 200 are patent disputes. The number of cases in patent law has decreased in recent years. However, many of the cases we’re currently handling are very large and extensive, and perhaps more difficult. The number of small cases especially has decreased.

Will this decrease in cases have an impact on the court?
Sabotier: Currently, our section needs between 18 and 24 months for a procedure. For patent disputes it can take a little longer. At present, nine judges work at the Tribunal Judiciaire de Paris at the 3rd chamber, which is responsible for IP. They are divided into three sections. There should really be 12 judges in four sections, but three positions have yet to be filled. Since fewer cases are being filed anyway, the court’s president has decided to maintain only three chambers, all of which are fully occupied.

The interview was conducted by Christina Schulze and Konstanze Richter.