Leading UPC figures: Who helped shape Europe’s new patent court?

One day before the UPC’s launch, JUVE Patent rounds up the seven most influential figures involved in the creation, development or story of the new European patent court system.

Tireless UPC advocate

In the decisive phase of the UPC’s development, German lawyer Margot Fröhlinger held an influential position at the EU Commission in Brussels. From 1994, she oversaw different policy areas in the Commission’s Directorate General for the Internal Market. From 2006 she dealt with intellectual property, including the creation of a UPC and the Unitary Patent.

Margot Fröhlinger

Between 2009 and 2012, Fröhlinger was the driving force behind the project at the commission. In the background she pulled the strings, tirelessly promoting the new European patent system – consisting of the UPC and the Unitary Patent – to the public. With the UPC finally launching on 1 June, former colleagues regard her as the “mother of the UPC”, while others say she is a “relentless fighter for the new patent court.”

On the other hand, those experts who are critical of the UPC accuse Margot Fröhlinger of wanting to realise the new court at all costs. This, they say, has resulted in a willingness to make poor compromises. However, all observers acknowledge that she always tried to find pragmatic political compromises – one of which was the proposal not to launch the UPC as an EU institution after 2011, which became necessary after the CJEU issued a negative opinion on the first draft of the UPC.

According to the court, an EU patent court that interprets EU law would have to submit to the CJEU – something the patent community wanted to avoid, given the CJEU’s lack of expertise in patent law. It is said that Margot Fröhlinger quickly worked out the current solution, together with her staff, in 2011. Today, the UPC is a court based on bilateral treaties of EU states and no longer an EU institution.

Margot Fröhlinger graduated from Saarbrücken University with a law degree in 1976. In 1987, she joined the Commission of the European Communities. Her first posting was in the Commission’s Directorate General for Competition, before moving in the direction of IP and patent law.

In order to remain faithful to the UPC project, in April 2012 she joined the European Patent Office where she is Principal Director for Unitary Patent, European and International Legal Affairs. In the meantime, Margot Fröhlinger has retired but is still involved in the UPC project in the background. On 30 May, she was the only non-former representative of the UPC project to speak at its official opening ceremony in Luxembourg. Here, in an eloquent speech, she expressed hope that the UK might still one day participate in the UPC.

Willem Hoyng

Inspiring outspoken confidence in the UPC

For several months, the Netherlands has confirmed its status as hosting only a local division of the UPC in The Hague. However, there is no doubt that the country remains visible and influential on everything from the UPC’s case law, to its choice of legal and technical judges, to its cross-border connections with other patent firms. This Dutch influence on the court’s future can be put down – almost solely – to the tireless advocacy of one man, Willem Hoyng.

A leading market figure known, among other things, for his managing partner role at Hoyng ROKH Monegier until 2018 following its 2015 merger, Hoyng is a true giant of the UPC. And, as former president of Dutch AIPPI, the Association of IP Litigation Lawyers (VIEPA), the IP Advisory Committee of the Dutch Bar and of the Government Advisory Committee on Patents, he has clout. Hoyng has tirelessly advocated for the Netherlands to play a key role in the court’s structure, despite sometimes lamenting the country’s procedural inefficiencies.

This is key, given that the decisions out of its two patent jurisdictions in Amsterdam and The Hague often influence patent strategy in cross-border disputes. As a former member of the drafting committee of the Rules of Proceedings of the UPC and current UPC Advisory Committee chairperson, he was instrumental in the choice of UPC judges. He also helped draft guidelines on opt-out and privacy regarding which patents will go into the system, and which judgments will emerge. But the choice of Hoyng to lead the Advisory Committee comes down to more than just talent. Given his unwavering loyalty and superior knowledge of the system, his appointment as the committee’s head inspired confidence in the patent community.

However, Hoyng is not without his controversies. As reported by Kluwer Patent Blog earlier this month, his opening valedictory speech at the University of Tilburg, where he is professor of IP law, in April 2023, covered what the market might expect from the future of the UPC. In its duration, he commented that he “never believed in the necessity and the advantages of technical judges” which have damaged the UPC’s credibility given the issues arising regarding conflict. But Hoyng has never been known to be quiet, and it is his outspokenness which is helping shape the court’s direction. Alongside other doyens such as Kevin Mooney and Winfried Tilmann, the UPC without Hoyng would be like a boat without a rudder.

Kevin Mooney ©Simmons & Simmons

The eternal optimist

Such is Kevin Mooney’s legendary status, that his absence at Tuesday’s inaugural event in Luxembourg saw him namechecked in the speeches and discussed over the champagne. As chairperson of the drafting committee responsible for the UPC’s Rules of Procedure, for the past 15 years the Simmons & Simmons partner and former EPlaw president has played a pivotal role in shaping the court as we see it today.

Alongside current chairperson of the Administrative Committee, Johannes Karcher, Mooney presented the 18th Draft Rules in a July 2015 meeting of the UPC Preparatory Committee. These came into force in 2017 and, aside from a few tweaks taking into account developments such as GDPR and video conferencing, remain largely in place today.

But 2015 was in the stable days prior to the UK’s exit from the European Union: after June 2016, Mooney’s role became infinitely more complex. Firstly, he had to navigate issues presented by Brexit; then, he had to help manage the potential impact of the constitutional complaint in Germany on continued UK participation. Some in the market viewed these attempts as fruitless, given the next – and biggest – hurdle to overcome was navigating the challenges posed due to the UK’s withdrawal from the unitary patent project. How might this impact the future of the UK patent system? asked the market. Well, Mooney answered. His advisory role shifted, including tasks such as, in 2018, giving evidence in the House of Lords to the EU Justice sub-committee.  Here, Mooney explained the potential impact of Brexit on the UK’s involvement in the court and related Unitary Patent plans.

In 2020, then-prime minister Boris Johnson’s government put paid to the UK patent profession’s ambitions to join the UPC. But far from prompting Mooney to take an early retirement, he became more determined than ever to ensure the project ran as smoothly as possible. As one of the only UK members on the UPC advisory group on implementation, he was heavily involved in the creation of the content management system (CMS) framework.

Given his in-depth background on the rules of procedure and court mechanics, Mooney also helped with the UPC judicial training at the EPO and each year at the annual judges’ conference in Venice. Now, with the court finally about to begin its work, its users have Kevin Mooney to thank for its framework. It is just a shame that the UK’s withdrawal from the project means his original UPC vision is not fully realised.

Alexander Ramsay

A calm omnipresence

Among JUVE Patent’s many articles about the burgeoning, and now live, UPC, one name above others has stood out: Alexander Ramsay. The UPC appointing the Swedish national as registrar in January 2023 marked Ramsay’s move from chairperson of the UPC Preparatory Committee, a role which he had held from 2015.

But this role is more than just a career change. Ramsay’s ascension to one of the court’s most important positions reflects the development of his knowledge and leadership. As registrar, Alexander Ramsay will organise all court proceedings and lead the Registry of the Court, which is located in Luxembourg, as well other tasks such as overseeing the IT systems and providing secretarial and budgetary support.

In short, being registrar required someone who knows the court inside out, with a helicopter view over its structure and the confidence to address delegates of all kinds, as a moderator, at the UPC’s inauguration in Luxembourg. Garnering respect from all echelons of the UPC structure, Ramsay handled the task with aplomb.

Ramsay first became involved in the UPC in 2008, working on the EU patent and UPC negotiations in his position as deputy director of the Swedish Ministry of Justice. He held this role alongside being a judge at the Swedish Patent and Market Court in Stockholm. A member of the UPC Agreement drafting committee, in 2013 the UPC Preparatory Committee appointed Ramsay as vice chair. From 2015, he led the preparations as chair. From January 2022, the Administrative Committee replaced the Preparatory Committee, when Ramsay assumed leadership of the highest decision-making body. After a brief spell away from the UPC, he returned in January 2023.

Steadfast in his optimism that the UPC will emerge, Ramsay has been instrumental in reassuring the court’s stakeholders. In terms of practical influence, for example deciding what will happen in the event of non-participation of the UK, Ramsay is a consummate expert. A clear head on strong shoulders is what the court relies on – no wonder Ramsay has the respect of the European patent market.

The one who challenged the UPC

In June 2017, who filed the first constitutional complaint against UPC ratification at the German Constitutional Court was unknown. The complaint temporarily halted the entire UPC process. But immediately, experts speculated that Ingve Stjerna was behind it. The Düsseldorf lawyer had learned patent litigation in the Düsseldorf teams of Bird & Bird, Hoyng ROKH Monegier and Simmons & Simmons, over the course of time becoming increasingly critical of the UPC project.

Reports published on his website are some of the most extensive collections of documents on the UPC. Although his colleagues never regarded him as an enemy of the UPC, Ingve Stjerna was one of its most outspoken critics. This included a lack of transparency in political decision-making, democratic deficits, and the constitutionality of the ninth court. Early on, in a 2014 article, “EU Patent Reform: Compatible with the German Constitution?”, he described what a constitutional challenge in Germany could look like.

Thus, in the summer of 2017, the speculation was confirmed. Ingve Stjerna was the complainant against German UPC ratification. In March 2020, the German Constitutional Court declared the ratification invalid because of a flawed vote in the German parliament. The Bundestag had to repeat its vote. It was not until 2021, after Germany finally ratified the UPC treaty, that preparations resumed.

Stjerna was less successful with a further complaint, when the German Constitutional Court rejected it in 2021. But the complaints and many months until the constitutional court finally ruled delayed the UPC process by almost four years, with considerable consequence – the most striking of which is the UK’s decision not to participate.

Winfried Tilmann

The unstoppable one

Over the past 15 years, a small group of very loyal supporters have supported the UPC. Kevin Mooney from the UK is one of them, as is the current UPC registrar Alexander Ramsay. But it could be said that Düsseldorf lawyer, Winfried Tilmann, has almost devoted his life’s work to the project.

Critics mocked the group as “Team UPC” when the UPC project stalled, for example due to the Brexit referendum or the German constitutional complaints. However, the group tirelessly insisted that the new court would go ahead, even though most patent experts had long since declared it dead. In the end, “Team UPC” was proved right.

It is no surprise that Winfried Tilmann stood by the UPC, even in its darkest hours. He resolutely maintained to the German patent community up and down the country that the UPC would take off in the near future. For many years, Tilmann has played a decisive role in the basic concept of the new court, the treaty and the rules of procedure. The 84-year-old put his vast knowledge into one of the most important UPC commentaries, ‘Unified Patent Protection in Europe: A Commentary’. He and his former partner at Hogan Lovells, Clemens Plassmann, have already had to revise it several times due to the many delays. Indeed, while the English translation is already in its second edition, the German edition is still awaiting publication.

Tilmann draws on an enormous wealth of historical knowledge. As an employee in the Federal Ministry of Justice in the 1970s, he was involved in the creation of the EPO and witnessed first-hand the failure of the first two attempts to introduce a unified patent court in Europe.

In 1979, Tilmann joined the renowned Düsseldorf IP law firm of von Falck & Tilmann as a lawyer, which until the late 1990s exclusively handled patent cases before the Higher Regional Court. The firm went on to be the cornerstone of Lovells’, and later Hogan Lovells’, strong IP practice in the early 2000s. Now Hogan Lovells is one of Europe’s market-leading patent teams, with Winfried Tilmann still occupying an of counsel role. But, naturally, the UPC is still occupying more of his attention.

Pierre Véron

A real French influencer

Pierre Véron is undoubtedly one of the best-known French patent lawyers. Not only is his name associated with potentially the most important instrument in French patent litigation, the saisie-contrefaçon; the 75-year-old also wrote the standard work on the subject.

Véron is also one of the UPC’s most influential players. In March 2000, he invited 20 lawyers from Belgium, France, Germany, Italy, Spain, the Netherlands and the UK to the Paris office of Véron & Associés. Shortly thereafter they decided to create an association to amplify their voices. Thus, Véron was the first president of the European Patent Lawyers Association, otherwise known as EPlaw.

Since 2005, the association has hosted the European Patent Judges’ Forum, held every year on San Servolo island in Venice. The forum is not only crucial for networking, but provided an impetus for the creation of the UPC. In the following years, Pierre Véron became involved in the creation of the new patent court. Between 2007 and 2012, he was one of two French experts who supported the European Commission on the Unitary Patent and UPC. Since 2014, he has been a member of the relevant committee working on the UPC Rules of Procedure.

Pierre Véron was also name partner of Véron & Associés – for many years, probably the best known French IP boutique – which he founded in 2001. In 2017, Véron largely retired from the partnership, with the younger partners considering the boutique’s future – in particular, its national setup with regard to the UPC. He was dealt a blow in late 2016, when Véron’s protégé, the renowned Thomas Bouvet, and his team jumped ship to Jones Day.

Following Bouvet’s departure, some outsiders considered the boutique to be too small and too nationally focused to maintain its usual high standard in UPC cases. The remaining team consisting of three partners around Sabine Agé moved in 2018 to the Paris office of Hoyng ROKH Monegier. Although already retired, Pierre Véron still focused on the UPC project in the years to come. Until recently, he was very active as a speaker at conferences. (Co-author: Mathieu Klos)