Florence Butin: “We are earning users’ trust”

JUVE Patent: After the first year, what is your overall feeling about the progress of the UPC?
Florence Butin: My overall feeling is that these past months went extremely fast. Right after it began I felt relief because I couldn’t help thinking that we should be ready in all respects, which was simply impossible. Instead, it was necessary to leave the preparatory stage and move on because some questions could not be solved in advance.

We had an entirely new framework with judges and clerks working in different locations – the majority having been appointed on a part-time basis – with some of them living far from their respective division. They began working together for the first time in different languages, in a digital environment and with a set of innovative rules of procedure that they had to apply without any guiding case law.

Which hopes have come true?
The first hope to come true is that after a highly challenging year, the UPC is doing better than expected. High-quality orders and decisions have been rendered in due time, urgent cases have been handled efficiently, and a number of hearings have been held – both remotely and in person. Difficulties have been overcome and we are earning users’ trust. What’s more, the judges are doing great work and users regularly highlight the availability and motivation of the clerks. The court has more cases than expected and has already begun to adjust its capacities to optimise conditions for all involved.

“The UPC is doing better than expected”

The court’s progress can now be measured in terms of facts and figures, rather than assumptions. It’s promising that we have successfully got through the starting phase. Some media also reported that the situation of the TQJs was a source of concern. I’m happy that, at present, more than 50 TQJs have been allocated after undergoing careful conflict checks. In my opinion, this is more than sufficient to conclude that the system is suitable.

Moreover, the technical expertise combined with the various backgrounds of these judges – either as national TQJ, patent attorney or from national patent offices – is highly appreciated. All this results from the commitment and flexibility of the judges and clerks, because although the administrative support is now of course present, it’s still a work-in-progress.

Where do you see the greatest challenges, especially for the first instance?
One remaining important challenge for the whole court is the improvement of the case management system. The registry is working hard on this priority. Human resources also remain a crucial aspect requiring responsiveness from the UPC – either the committees or the Presidium, depending on the decisions to be taken – as well as the support of the Member States.

Indeed, most of the judges are still working in national courts under national rules and thus have to juggle equally important commitments. We are developing our training framework, including language courses, and our tools to collect and monitor statistics on all aspects of our activities, which takes time. We have also recently welcomed a communication officer. There is still a lot of work to be done, but none of the problems we’ve encountered so far have been unsolvable.

How do the part-time judges simultaneously manage their duties at the national courts and at the UPC?
This is a major aspect of our organisation and one of the reasons why our task – at a managerial level – may be difficult. All part-time judges have a busy national schedule, and yet they also need to comply with the UPC’s timeframes. In this context, an important part of the president’s job is to facilitate this as much as possible.

“UPC will employ more full-time judges as time goes on”

It’s also a question of fairness because the allocation process must consider the respective working time and caseload of the different divisions. We have therefore developed tailored tools for this. When allocating each case, we check the current workload of the intended judge. The same applies for the standing judges’ scheme. However, we can expect that the UPC will employ more full-time judges as time goes on.

According to the Rules of Procedure, the member states will officially decide on the matter of language. What are the experiences so far with this practice and what is your view on this?
According to the latest figures, the language of proceedings is now 50% English, 43% German, 3% French, 2% Italian and 2% Dutch. We can see a growing trend towards English. Yet 52% of infringement actions are lodged in German while 40% are filed in English.

The purpose is not to question the right for a claimant to use the local language, pursuant to Art. 49.1 UPCA. The entire premise of the court is that it gathers all the various national experiences and cultures. This is much more effective if all judges can be allocated to any division using the same language. This is also desirable for allocating TQJs, as their language skills don’t take priority over their technical expertise. In addition, our training sessions are in English, as is our general communication.

What were your personal reasons for joining the UPC?
My specialisation in IP stems from an enduring interest in all economic matters in combination with the European and international perspectives. I also believe our success is not only useful for the patent community, but more generally for the trust in Europe. Therefore, participating in a European project is a driving force behind my motivation. It is a great opportunity but also an impressive responsibility to shape such a system, step by step from the very beginning, after a long period of preparatory work.
The experiences that I have had up to this point far exceed my expectations.

“The UPC is an outstanding human adventure”

The UPC is an outstanding human adventure, requiring interaction with all parts of the organisation. None of it would be possible without the support services and the people behind them. Before answering these questions, I had a full day’s meeting with my head of office and the Registry’s heads of the human resources and finance departments – both of whom came from Luxembourg to work on specific items of the budget.

Concurrently, the UPC is developing its case law, and an increasing number of decisions refer in their reasoning to those delivered by other divisions. The judges regularly discuss legal and procedural questions online, and they meet in person for training sessions – the next one in September will include all LQJs and TQJs. There have been more than 240 decisions where a second or third judge, or a technically qualified judge, has been allocated to complete the panels at the different divisions. All this fosters exchange. We are now entering a period where the UPC is functioning as a single unified international patent court.

Co-author: Konstanze Richter