“The UPC must harness user enthusiasm to ensure a successful launch on 1 June”

The UPC Sunrise Period has officially begun. In three months, the Unified Patent Court will launch. What could go wrong? Not much, unless too many technically qualified judges jump ship because the conflict rules are too strict. Or companies swamp individual local chambers, with no plan in place for judges to tackle a high workload. Thus, while the future is bright for the pan-European court, those in charge of the court's development must recognise that much remains at stake.

1 March 2023 by Mathieu Klos

UPC As the UPC officially enters its Sunrise Period, JUVE Patent co-editor Mathieu Klos says that those in charge of its development must harness the enthusiasm of its users to ensure a smooth opening on 1 June. ©Davide Angelini/ADOBE STOCK

Fast, independent and technically sound decisions are how patent courts make their users happy. The same is true for the UPC, which today entered into its much-anticipated sunrise period. However, if one factor in this triumvirate of expectations falls out of balance, the faces of company representatives and lawyers will quickly show worry lines. If the UPC disappoints the expectations of its plaintiffs in particular, they may move on to national courts. Here, these three factors have historically struck an equilibrium.

“Enthusiasm among judges, the legal profession and company representatives is at an all-time high”

Thus, those invested in the Unified Patent Court’s future are keen to ensure it keeps these three factors in balance. The court must be attractive, in order to attract cases. While today marks the start of the sunrise period, it does not begin its work until 1 June.

It is only then that the patent community will see whether the global economy actually accepts the long-awaited, Europe-wide venture.

UPC enthusiasm abounds

The UPC has completed most of its important preparatory work. The Administrative Committee has selected and trained most of its legally and technically qualified judges. Its rules of procedure are in place, and the presidium is now fine-tuning one or two of the rules. Above all, however, the IT systems finally seem to be up and running. According to the UPC officials, the case management system is working. This is a good sign, which is instilling confidence among users of the new European patent system.

As of today, companies can opt their European patents out of the system or place them under the jurisdiction of the new court. In addition, lawyers and patent attorneys can register as official representatives.

Enthusiasm among the judges, the legal profession and many company representatives is at an all-time high. Critical voices regarding excessive costs for small and medium-sized companies, for example, are achieving barely any cut through. Almost everyone wants to be there when the world’s first supra-national patent court begins.

Resentment at Code of Conduct 

However, the court has not launched yet. Its users’ high expectations may yet be disappointed. For example, rumours are currently circulating that one or two technically qualified judges may not even take up office due to very strict conflict rules. In that case, the UPC will be forced to appoint successors.

In October 2022, shortly after the UPC announced its final list of judges, concerns surrounding the possible bias among the 43 technically qualified judges from industry and the legal profession ignited a public debate. The key question: can the 35 technical judges from the legal profession be independent, if they are advising UPC clients in parallel?

UPC officials responded. According to JUVE Patent sources, the UPC presidium presented the judges with a first draft of a Code of Conduct during the central training event in Budapest in January. The code is intended to supplement the existing rules on judicial independence in the UPC contract and statutes.

Advisory work severely restricted

The key point from the Code of Conduct is that UPC judges cannot also oversee UPC proceedings as lawyers. However, the rule that UPC judges cannot advise a client if the instruction could potentially become a UPC case caused particular displeasure. According to sources, this rule caused a great outcry in Budapest.

One or two lawyers and designated UPC judges are said to have threatened to resign “because the rule practically thwarts any legal work”. Furthermore, those affected find the rule extremely strict, since the UPC only employs its technically qualified judges on a 20% part-time basis. This assumes that judges will hear a maximum of one or two cases per year, while being paid on a case-by-case basis.

At the same time, the law firms to which the UPC judges belong may expect them to turn down cases that could lose them lucrative clients. In its current version, the Code of Conduct is likely to be a particular problem for patent attorneys from larger law firms. The new rules may even force them to resign.

While those affected show great understanding for the UPC’s efforts to demonstrate the highest possible independence of its judges, they also hope for a more lenient rule on advisory work. Therefore, stakeholders are calling upon those responsible to find a fair balance of interests. After all, by the UPC’s own admission, it is dependent on the part-time judges from the legal profession, especially during the initial phase.

“Stakeholders are calling upon those responsible to find a fair balance of interests”

Apart from anything else, a wave of technical judge resignations would be a PR disaster. This is especially because the issue of part-time judges is likely to be settle quickly anyway.

After all, if the UPC is successful, the proportion of full-time judges should grow rapidly – even among technically qualified judges.

A question of fine tuning

In addition, UPC officials cannot yet confirm what will happen if a local chamber is flooded with lawsuits from the beginning.

Many patent firms in Europe confirmed to JUVE Patent that they are preparing UPC suits, although whether their clients will eventually decide to file them is uncertain. But what happens if the firms file increasing numbers of suits at the Dutch local chamber in The Hague, or in Hamburg? Since most of the judges will initially work part-time, they will also have obligations at the national courts.

So far, the UPC’s policy seems to be that judges should deal with cases one by one, to the best extent possible. This, however, bears the risk that a plethora of cases will overload a local chamber. This might then create the impression that the UPC as a whole is working too slowly.

A solution could be targeted capacity management, especially by the management of the Court of First Instance. After all, the UPC employs 27 highly paid judges in this level of the court’s overall structure.

Communication is key for UPC

Thus, as of today, the UPC has completed its most important preparatory work. But there is still a lot at stake. With the people in charge mostly judges, trained to interpret laws and write judgments, the UPC must carefully consider how it can meet the expectations of its users in terms of overall strategy. After all, the national courts do not train judges to be diplomats or shrewd communication strategists.

“The important prep work may be complete, but the UPC still has a lot at stake”

In the three months which now precede the UPC launch, as well as far beyond, it will be important that the UPC reassures users that it has the triple factors of speed, judicial independence and professional excellence in balance.

The countries which the Administrative Committee represent should also keep this in mind. After all, it is users from the 17 member states who will need to maintain their enthusiasm to ensure the court is a success.