Germans dominate among UPC judges

“All is flux” goes the proverb, and this also applies to the Unified Patent Court and its judges. The court had a good start, with 373 cases at the end of May already and these have continued to accumulate over the last three weeks. With this in mind, the court’s presidium and the UPC states recently appointed five new legally and eight technically qualified judges.

Big boost in Munich

Daniel Voß joined the Munich local division and Dirk Böttcher the Mannheim local division. Both divisions have a particularly high caseload. For the central division in Milan, which shall take up its work on 27 June, the court recruited the Italian judge Andrea Postiglione from the Supreme Court of Cassation in Rome. He will preside over the new division.

Andrea Postiglione and Pierluigi Perotti ©UPC

In addition, the German Anna-Lena Klein, who is currently a judge at the Munich Regional Court, and the Dutch native Marije Knijff, currently a judge at the District Court of The Hague, will also move to the Milan division part time.

But the boost in capacities has not come through new appointments alone. Ulrike Voß previously headed the central division in Munich part time, while working at the Higher Regional Court in Düsseldorf. However, she moved to the UPC full time in early June. She now heads not only Munich’s central division but also the second panel of the city’s local division.

Furthermore, Matthias Zigann also moved to the UPC full time and now heads the first panel of the Munich local division. The decision to bolster capacities in Munich comes following the sheer number of cases it received in its first year.

The Düsseldorf local division also has many cases, which is why Bérénice Thom has also moved to the UPC full time. Ronny Thomas, who heads the local division and is a member of the executive committee, was already working full time at the UPC.

JUVE Patent is not aware of whether UPC officials have also increased the hours for other judges.

Increase in electricity expertise

Currently, 117 judges are active at the UPC with varying degrees of intensity. Of these, 42 are legally and 75 technically qualified. In comparison, 37 legally and 68 technically qualified judges were employed at the court a year ago.

The rise is down to the surprising appointment of eight new technically qualified judges on 24 June. These are Torsten Duhme, Christian Keller, Christoph Norrenbrock, Michael Quittkat, Jochen Thomas and Oliver Werner from Germany, as well as Steven Richard Kitchen from Denmark and Johannes Mesa Pascasio from Austria. All new judges work part time. One German TQJ, who works as a judge at the German Federal Patent Court recently left the UPC.

The new TQJs Duhme, Keller, Norrenbrock, Quittkat, Thomas, Kitchen and Mesa Pascasio provide a huge boost in electricity and physics. Oliver Werner is the only one of the eight new appointees to be deployed in another segment: biotechnology.

The UPC now has 22 technically qualified judges in electricity, which also includes mobile communications patents. Mobile communications cases at the UPC have risen considerably of late. Many proceedings concerning lighting technology for consumer goods are also related to electricity.

Of all TQJs, 29.3% are now assigned to electricity. Eight judges were assigned to physics from the outset (10.7%). In addition, twelve of the 22 judges in the electricity field also bring experience in physics.

But electricity is not the only field in which the UPC has a large number of TQJs: 29.3% have a background in mechanical engineering. Chemistry and pharma (21.3%) and biotech (9.3%) together account for 30.6% of TQJs.

More male judges

Even though there was a noticeable effort to appoint as many qualified female judges as possible during the recruitment process two years ago, there are 82 male judges compared to 35 female judges at the UPC. Of the latter, 19 are legally qualified and 16 are technically qualified.

The last two rounds of appointments in particular have further increased the proportion of male judges in both groups. All eight new technically qualified judges are male. This means that there are now 59 male judges compared to 16 female judges among the TQJs.

Interestingly, the proportion of female technically qualified judges in France is significantly higher than that of legally qualified judges. Overall, however, the UPC needs to recruit more female technical judges in the future.

Among the five new appointments of legally qualified judges, Anna-Lena Klein and Marije Knijff are the only female judges.

Another change, which the UPC has already announced, will further shift the balance in favour of male judges. French judge Françoise Barutel will be leaving the UPC Court of Appeal in September. She is working in parallel as presiding judge at the Paris Court of Appeal. Former Pinsent Masons partner Emmanuel Gougé will succeed her.

Growing German dominance

The latest appointments have also led to a further increase in the proportion of German judges. Of the recently appointed legally qualified judges, three come from Germany, one from Italy and one from the Netherlands. Of the eight new technically qualified judges, six are from Germany.

Thus with 36.8%, most UPC judges come from Germany. Of the 75 technically qualified judges, 28 are German, while 15 are from France and seven from Italy. Of the 42 legally qualified judges, 15 come from Germany, six from France, six from the Netherlands and five from Italy.

That so many judges hail from Germany is not without reason. The German local divisions currently have the most proceedings. Of the 373 proceedings across all divisions, the Munich local division has 141, while the Düsseldorf local division has 50 proceedings. In addition, 44% of UPC proceedings are conducted in German.

Strong showing from Germany

UPC officials were probably not able to appoint more judges from other countries during the latest recruitment phase. According to the UPC, the number of German applicants in the fields of electricity and physics was high. It is possible there were not enough applicants from other countries in these technical fields.

As the proportion of German judges has grown with this latest round, the proportion of judges from France has now decreased to 17.9%, followed by Italy at 10.3% and the Netherlands at 8.5%.

Of the smaller countries, from which less than 10% of judges usually hail, Sweden stands out with 6%. Overall, the Scandinavian and Baltic countries, Sweden, Finland, Denmark, and Estonia, have a strong combined presence with 15.4% of judges. This is not yet in proportion to the eight infringement and eleven counterclaims for revocation at the local divisions in Copenhagen and Helsinki and the Nordic-Baltic Regional Division.

However, other local divisions often consult the Scandinavian judges, such as the Danish Peter Agergaard, the Finnish Petri Rinkinen and the Swedish Stefan Johansson, as a third judge due to their many years of experience.

UPC still banks on patent attorneys

Three of the eight new technically qualified judges are currently working as patent attorneys in private practice: Torsten Duhme at German IP firm Witte Weller, Christoph Norrenbrock at Hamburg-based patent attorney firm Pavant and Steven Richard Kitchen at Danish outfit Copa.

However, the UPC also appointed four employees from the German Patent and Trademark Office: Christian Keller, Michael Quittkat, Jochen Thomas and Oliver Werner. Meanwhile, Johannes Mesa Pascasio works at the Austrian Patent Office and, according to the UPC, is also a technically qualified judge at the Higher Regional Court Vienna.

Before the UPC launched, the high proportion of patent attorneys from private practice appointed as TQJs in the first phase of recruitment led to some criticism from users. They feared that patent attorneys working in private practice or in patent departments could bring a certain bias to their role as judge. The UPC responded by adopting strict rules of conduct for its judges who work part time in private practice. Then, in a second recruitment phase in 2023, the court predominantly appointed examiners and judges from national patent offices or patent courts as new technically qualified judges.