UPC Administrative Committee names final three judges

By October 2022, the UPC Administrative Committee had appointed the majority of UPC judges, thus instilling confidence in the new court among the global patent community. At this time, it had published a list of 85 judges, including 34 legally qualified and 51 technically qualified individuals. However, three positions remained empty.

UPC judges list complete

The Administrative Committee did not succeed in finding a suitable candidate for the Central Divisions in Paris and Munich, nor a Danish judge for the local division in Copenhagen. According to reports, one or two candidates also withdrew at the last minute.

But the Administrative Committee has seemingly now found a solution for the three open positions, although the UPC has not yet publicised the personnel details. According to JUVE Patent sources, Dutch patent lawyer András Kupecz will join the Central Division in Munich as a full-time judge. Kupecz, who was present at the official opening ceremony of the UPC in Luxembourg, confirmed his appointment to JUVE Patent.

From TQJ to LQJ

The UPC had already appointed Kupecz as a technically qualified judge for biotech patents in October. He is dual qualified as a Dutch and European patent attorney, and as a litigator. Kupecz will now move to the Central Division as a legally qualified judge.

András Kupecz

Kupecz began his career in 2003 at patent law firm Los & Stigter, later joining Freshfields Bruckhaus Deringer in Amsterdam as an associate. From 2009, he worked for the renowned patent practice of Simmons & Simmons until founding his own firm in 2013.

However, he remained associated with Simmons & Simmons as counsel. He repeatedly worked together on various litigation projects in the life sciences sector, such as for Samsung BioEpis concerning biosimilar Humira. During this time, Kupecz established a strong reputation in the Dutch patent market.

At the beginning of May, Kupecz confirmed to JUVE Patent that he had departed his latest law firm, Pinsent Masons, in order to fully focus on his role as a part-time UPC judge. He had been another recent addition to the Pinsent Masons IP team, joining the new Amsterdam office as a partner in late 2021.

A French man in Paris

After the UPC judges announcement in October, a vacancy at the Central Division in Paris also became clear. French judge François Thomas has now filled this position, as the Administrative Committee confirmed to JUVE Patent. Thomas is currently presiding judge at the Court of Appeal of Versailles where he deals with commercial litigation, including unfair competition.

But he is no stranger to the Paris IP scene: from September 2012 until January 2016, François Thomas worked as judge and presiding judge at the IP chamber of the Paris Court of First Instance. In June 2016, he became a judge at the Paris Court of Appeal’s IP chamber, where he remained until September 2020. At this point, he moved to the Court of Appeal in Versailles.

In 2021, French patent experts in particular voted François Thomas into the list of French ‘national favourites’ for the UPC. This vote was part of the JUVE Patent UPC judges survey 2021. However, with 3.3% of the vote, Thomas was behind top favourite Nathalie Sabotier, who gained 21.5% of the vote.

Danish surprise candidate

According to an internal UPC document, the Administrative Committee’s choice of permanent judge for the Copenhagen local division is Peter Agergaard. He will preside over the division, which will be staffed with one Danish judge and two rotating foreign judges.

In contrast to András Kupecz and François Thomas, Agergaard is so far relatively unknown in European patent law. According to sources in Denmark, Peter Agergaard was a junior judge from 2017 to 2020 at the Danish Maritime and Commercial High Court, which is a specialised IP, competition and marketing practices. He was appointed judge at the same court in 2020.

Thanks to Danish patent proceedings, Agergaard is also used to working with technically qualified judges. TQJs sit on the panel of judges in the first instance in Danish patent cases, regardless of whether the case is for a PI or on the merits and regardless of whether it concerns validity or infringement.

According to Sture Rygaard, IP partner at Copenhagen based law firm Plesner, “Agergaard is a good choice for a Danish UPC Local Division”.

Uncertainty due to technical judges

Although the list of legally qualified judges is now complete, the Administrative Committee still has work to do with the appointment of technically qualified judges. A discussion about the independence of TQJs who work in parallel as patent attorneys in patent departments or private practice, and a very strict Code of Conduct, recently caused heated debate about the compatibility of the UPC judgeship with the practice of law.

Just last week, Grégoire Desrousseaux, dual-qualified litigation partner at French market-leading firm August Debouzy, announced his resignation as TQJ via LinkedIn. “The UPC Code of Conduct was recently published. In my view, this Code of Conduct results in my current activities being largely incompatible with the position of a UPC TQJ. I thus resigned from this position and will continue working as an attorney and patent attorney,” wrote Desrousseaux.

UPC remains optimistic

Other patent attorneys are expected to resign from their position as TQJ in the coming days. But the UPC seems prepared. In early May Willem Hoyng, chair of the UPC Advisory Committee, told JUVE Patent that the UPC is well-equipped to deal with possible resignations.

Hoyng says, “During the last recruitment round for technically and legally qualified judges for the reserve list, the UPC received 329 applications, among which about 150 were from potential technically qualified judges. These candidates do not work in private practice, but for national courts, national patent offices and other institutions. So there will be absolutely no problem in making sure that, at the start of the UPC there are sufficient numbers of technically qualified judges not working in private practice.”