Pierre Véron: “UPC is off to an excellent start”

JUVE Patent: The UPC has been a reality for one year. As a ‘father’ of the UPC project, how satisfied are you with its first year?

Pierre Véron: I am happy to say that I think the UPC is off to an excellent start. The judges are enthusiastic. They like working in this international context and they are keen to keep the promise to deliver judgments in about a year’s time. The months of June and July 2024 are likely to be busy for observers, as we begin to read the first decisions on the merits of the cases filed when the court opened its doors. I am sure they will not disappoint because the judges are excellent. Although not all the excellent patent judges are in the UPC, all those who are in the UPC are excellent. They give very good decisions. I read almost all the decisions. So far I haven’t said, “Oh, how stupid is this decision!” I have read one or two decisions where I personally would have taken a different position, but I understand the position that has been taken by the judges.

In the first year, around 130 complaints were submitted to the UPC. Is this a successful start-up phase?

Some years ago, the EU Commission carried out a study to estimate the workload of the future court. It presented two scenarios, “high up-take” and “low up-take”, depending on whether patent holders would systematically use the opt-out and whether they would be inclined to use the UPC. The low up-take scenario estimated 7 cases for the first year of operation. The high up-take scenario estimated 123 cases in the first year. We have reached high up-take after only 11 months!

“The big users have confidence in the system”

This scenario expected 260 cases for the second year and around 500 for the third year. The number of cases is therefore not only respectable, but also beyond expectations. What is more important is the quality of the cases: the big users have confidence in the system. These include Abbott, Amgen, Dolby, Edwards, Fujifilm, Hewlett-Packard, Hoffman-La Roche, Huawei, Kodak, Netgear, Nokia, Panasonic, Philips, Sanofi and Tesla. What more could you want?

A focus of this first year was on clarifying procedural issues. What is your personal position on the question of the language used in proceedings?

The question of the language of proceedings has always been a hot topic in the UPC, as it is in the EU. When we explain to US or Chinese colleagues that the European Union works with 24 official languages and that some of our countries have three official languages, they are always surprised.

Having said that, I think the language regime adopted by the UPC is a good one. For revocation actions, the language of the patent is the only option, which did not raise any criticism. For infringement actions, there is no real change compared to the current national systems: the language of the place of infringement is the main option. This is also natural; if you decide to sell a product in a country, you must respect the laws of that country and expect to be sued in the language of that country. The addition of English to the choice of Member State has never been criticised by anyone. Nor has been criticised the rule that the plaintiff has a choice between different competent courts and a choice between different languages legally available in that court. And already the Court of Appeal of the UPC has accepted a change of language from German to English, the language of the patent, pointing out that “where the result of the balancing of interests is equal, the position of the defendant is decisive”. English is also already the internal working language of the UPC judges.

Lawyers often discuss at length the size and how international their UPC teams are, but this seems to play only a subordinate role in the initial phase. Is the court so far less international than it was planned to be?

The most important thing for law firms to consider before taking on UPC cases is the number of people available to prepare the case. When we drafted the Rules of Procedure, we designed all the procedural timelines and deadlines to ensure that the one-year target for a decision would be met. Some time limits are extremely short, in particular for the preliminary objection, where the defendant has only one month to raise questions about the jurisdiction of the court or the language of the case. In the meantime, the clock is still ticking on the main proceedings. This means that you need to have people working in parallel on the procedural issues and on the substance of the case, i.e. validity or infringement.

In terms of internationality of cases, my personal feeling is that they are no more international than patent cases brought before a national court. The UPC Agreement has a specific law on infringement which is slightly different from the national rules and so UPC cases have a specific substantive law. However, many UPC cases run parallel to national cases. For example, Panasonic has cases pending before the UPC, several German courts and the English court. In such cases, there is obviously a need for international teams to coordinate the different proceedings. But for cases pending only before the UPC, I would say that it is rather exceptional that an international team is needed.

After less than a year, there are lots of cases before the UPC’s German local divisions. Is that a problem?

The whole architecture of the UPC was designed to allow this. You may recall that prior to the UPC Agreement, in the decade 2000-2010, there were a number of concurrent proposals – such as the EPLA system and the forerunners of the UPC proposed by the European Commission – which envisaged a single court at the first instance level. But this was widely rejected by stakeholders. No one wanted to see a mere duplication of the EPO system for litigation. The UPC was accepted by users and Member States only because it offered the possibility of choosing a court close to the users and with which the parties would be familiar.

It’s not surprising that the German local divisions attract a significant proportion of cases. This was already the case in the pre-UPC era: the German courts always attracted at least half of the patent cases in Europe.

A fundamental pillar of the UPC is that users can choose. Competition between courts is a good thing. Ultimately, it is the job of the Court of Appeal to blow the whistle if something goes wrong. A party cannot go to the local division in Munich for a case that has nothing to do with Germany. That was a pillar that was accepted by everybody, and I think that will never change.

What can France, the Netherlands or the Scandinavian countries in particular do to attract more cases?

“We should not mind if the Germans have more cases than the French”

This is an embarrassing question because I don’t think a judge’s goal should be to have more cases than the other judges. Instead, it should be to give the best judgments possible! After that, it is up to the users to make up their minds. But I don’t think it’s a good idea for a judge to say, like a shopkeeper in the Kabul bazaar, “Come and see my shop.” This is more or less what happened in the US some years ago with the Eastern District of Texas, where a pro-patent judge attracted a lot of cases. It led to a change in the law on the venue of cases to avoid such a drift.

We should not mind if the Germans have more cases than the French. We just have to be happy that we have good judges in all divisions of the court.

JUVE Patent: The UPC Agreement and RoP have many common law implications. What do you think about the postponement of Ireland’s UPC referendum?

The postponement of the Irish UPC referendum is a pity. But it’s a matter of constitutional law and politics, and the Irish constitution requires a popular vote. After that, it’s a matter of the political agenda, where the Irish government probably feels that there are more pressing matters than ratifying the UPC Treaty.

Having said that, it should be remembered that the UPC Agreement and the drafting of the Rules of Procedure took place well before Brexit and Boris Johnson’s decision a few years later to withdraw the UK’s ratification. English common lawyers have played a significant role in the construction of the UPC and the drafting of its foundations. As far as the Rules of Procedure are concerned, the man who held the pen most of the time was Kevin Mooney, a distinguished English solicitor. Alongside him in the drafting of the Rules of Procedure we had the most senior patent judges in the UK: Robin Jacob, David Kitchin, Christopher Floyd and Colin Birss. And several leading practitioners had their say on the UPC Agreement and the Rules of Procedure. So the common law is already there.

JUVE Patent: The keyword ‘transparency’ is on many people’s minds. In your opinion, is the UPC transparent enough?

JUVE Patent note: Pierre Véron hid his face behind a captain’s hat for a while before answering: Clearly, the issue of transparency needs to be properly addressed. One starting point was a last-minute amendment to the RoP.

The RoP were extensively discussed between 2009 and 2015, with more than 18 drafts published, but a few months before the court’s launch the Administrative Committee proposed a change regarding access to court documents.

The Drafting Committee agreed on full transparency, which is the rule in modern justice and in the patent world: in the US, you can get access to the summons as soon as a case is filed; at the European Patent Office, you have immediate online access to all the documents in an opposition file. Similarly, we all agreed that, unless there are specific confidentiality issues, you should have access to all documents as soon as the application is served and filed. A lot of care has been taken throughout the UPC Agreement and the RoP to deal with confidentiality issues. We thought it was a good system. But at the last minute the Administrative Committee introduced the rule that this glass house cannot be visited without a legitimate reason. However, there’s no definition of what ‘legitimate’ is, so it’s up to the court to define it. Fortunately, the Court of Appeal has so far taken an open-minded approach and I think this will be maintained and expanded. But it is a real problem.

“At the last minute the Administrative Committee introduced the rule that this glass house cannot be visited without a legitimate reason”

It’s a pity we need to fight an uphill battle to get access to documents that don’t contain anything confidential. If a party has found evidence that a patent is invalid because the subject matter was disclosed five years ago, why should that not be available to third parties, as it is in EPO opposition proceedings? I hope that this rule will be changed in the future, but if not, that it will be applied with an eye to the public interest. This is a fundamental element.

You run a search engine for the UPC’s decisions on your personal website www.veron.com. What are your goals with this project?

On the “Decisions and Orders” page of the UPC’s website you can access all judgments – with some exceptions due to confidentiality. However, the search is limited because it’s not possible to search the full text of the decisions.

A full text search is extremely important for legal research or academic purposes – or for the practitioner who needs to find the court’s case law on a particular issue. For example, if you want to know what has been decided on the validity of the assignment of a right of priority or on infringement by equivalence, you need to be able to search the full text of the decisions.

In addition, the court’s website does not currently provide English translations of decisions handed down in other languages, in particular German – except for the most important decisions of the Court of Appeal. It’s very important for academics and practitioners to be able to read English translations of all the court’s judgments and for informational purposes machine translation, available at a nominal cost, does the job amply.

I hope that these two features will be added to the court’s website soon so that I can close my search engine!

Co-author: Mathieu Klos