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Plans for training of judges Unified Patent Court are ready

Source: Kluwer Patent Blog

Despite the uncertainty about what will happen in Germany with the Unified Patent Court Agreement, the UK is heading for ratification of the UPCA and preparations for the court are going on.

In the UK, the legislative steps have been completed and it is expected the UK will complete all formalities by depositing its instrument of ratification with the General Secretariat of the EU Council in March or April; it will be the 16th member state of the Unitary Patent system to do so.

The Unified Patent Court Agreement will enter into force once the UK and Germany have completed the ratification process. In Germany both chambers of parliament gave their support to the UPCA last year, but the ratification process was suspended after a constitutional challenge was filed against the UP system.

The German Federal Constitutional Court (FCC) is yet to decide whether to hear the case. If it does, this could considerably delay and even block the start of the Unitary Patent system. At the Unitary Patent Package conference last week in The Hague however, several observers showed optimism that the complaint will be dismissed, or rejected as unfounded. They based this on reports of several organizations which were requested by the FCC in the case. In these, experts in constitutional law point at jurisprudence that an individual cannot complain before the FCC about (in)compatibility of EU law with constitutional law, among others; they are convinced the other elements of the challenge are inadmissible or unfounded as well.

At the conference, chairman Alexander Ramsay of the UPC Preparatory Committee said work to prepare for the UP system is going on. ‘We are trying to use the time that we have to make sure the system works when we’re starting.’

A detailed planning has been made, among others, for the recruitment, training and appointment of UPC judges. Simmons & Simmons partner Kevin Mooney, chairman of the Drafting Committee and of the Expert Group of the UPC, explained this is linked to the start of the period of provisional application (PPA) of the UPCA. This period, during which practical preparations of the Court will be finalized, will last about 8 months in which, to begin with, UPC judges will be appointed.

According to Mooney, four to six months after the start of the PPA there will be a three-day training at the CEIPI in Paris for technically qualified judges, who need ‘to be introduced into the ethics of being a judge’. In the Budapest based training centre of the UPC, 95 appointed judges (45 legally and 50 technically qualified) will have a four-day training on the Rules of Procedure, including a mock trial of two days. The training will be in mixed groups of around 30 people.

In month six and seven, all 95 judges and registry staff will be trained three to four days to use the content management system of the Court, again in mixed groups. After this, in month eight, the UPC can start functioning.

In 2015, a group of 36 judges from smaller IP countries such as Bulgaria, Malta, Greece, Romania and Slovenia, were trained already in Budapest. In the past, some observers have questioned the quality of judges from countries with little experience in patent cases, but Kevin Mooney was impressed with the judges he trained.

He also said that, because of the delays the UPC has been facing, there might be a new, limited round of recruitment of UPC judges, once it is clear what the timetable for the start of the UPC will be. A final decision on this has not been made.

Preferibly before the decision of the FCC on the German complaint is known, the UPC Preparatory Committee will have to solve a crucial issue. Support from at least three member states for the Protocol on provisional application of the UPCA, including Germany, is necessary before the PPA – and the UPC – can start.

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‘Start of Unitary Patent system is taking too long’

Source: Kluwer Patent Blog

It is self-evident that the Unitary Patent system is good for Europe. The project will attract the best judges, there is a good set of procedural rules, the industry wants it, this is a ‘no brainer’ and the start of the system is taking too long.

Alexander Ramsay, chairman of the Preparatory Committee of the UPC said this at the Unitary Patent Package Conference, 8 and 9 february 2018 in The Hague. Ramsay, who has been on the dossier for ten years, five of them in the PrepCom, hailed the companionship and the ‘extremely dedicated people’ he has been working with.

According to Ramsay, the delays in the UP project, caused by the Brexit vote of 23 June 2016 and the German constitutional complaint which was filed last year against ratification of the Unified Patent Court Agreement (UPCA), are hard to accept. Still, the opinions of several associations (EPLIT, GRUR, DAV, BRAK, EPLAW) which had been requested by the German Federal Constitutional Court (FCC), have made him hopeful the Unitary Patent project will come through. All of these organizations have concluded the complaint should not be admitted by the FCC, or be rejected as unfounded.

Ramsay hopes the UK will complete the ratification formalities of the UPCA and the Protocol on Privileges and Immunities soon and that it can stay in the UP system post-Brexit. It is obvious, a ‘no brainer’ as well, according to the chairman of the PrepCom, that long-term participation of the UK is in the interest and to the benefit of all. ‘As a series of scholars have explained, this is legally possible. It depends on the political will.’

It is not easy to prepare for the system and be ‘almost ready for an indefinite period of time’, according to Ramsay. By now 15 Member States have ratified the UPCA, which means that quite a high number of states will be part of the UP system once it comes into effect. The Czech Republic, Slovakia, Cyprus and Ireland are not expected to be in this first group.

Regarding the Protocol on Provisional Application (PPA) of the UPCA, support from Germany and two more states is necessary. The protocol will allow parts of the UPC Agreement to be applied early. This includes final decisions on the practical set up of the Court, the recruitment of judges and testing of IT systems. The provisional application phase will also be used to allow for early registration of opt-out demands.

Despite the uncertainty and delays, technical preparations are going on, Ramsay explained during the conference. The Preparatory Committee formed five ‘interim teams’, which have to make sure everything works once the period of provisional application starts.

For the HR team, the recruitment of judges is a huge challenge. As Ramsay explained: ‘We cannot do the final recruitment, interviews, appoint judges before the start of the PPA.’ But plans have already been made how to organize this process. There will probably be interviews with candidate judges in four different locations. Teams of interviewers will be formed, who will need to stay in hotels. ‘This is a big operation that needs to run smoothly.’ Also during the PPA, the judges and other staff of the court will have to be trained.

The interim Registry, FI and Corporate functions teams are busy, among others, with finding resources so the court can do what it has to do – ‘The delay costs money’ – creating an HR system, an accountancy system etc. ‘We’re trying to use the time that we have to make sure the system works when we’re starting’, Ramsay said.

The interim IT team, chaired by Kevin Mooney, is working on the CMS system. According to Mooney, it turned out to be very complicated to translate the rules of procedure into a working CMS, although the work is progressing steadily. He explained the CMS will take parties through the steps of the proceedings. Generally, they will have to do most work offline and then upload documents.

Mooney also said some minor changes of the Rules of Procedures can be expected, for instance concerning the procedure to opt patents out of the jurisdiction of the UPC. Under the current rules, any mistake in the opt-out means it will have no effect until it is corrected. It’s under discussion however whether an exception should be made for minor mistakes, for instance in a name. Another issue still under debate is what should happen if the wrong patent number is used when registering an opt-out.

Although Kevin Mooney admitted he has had to change his predictions about the start of the UPC many times, he still pictured what may happen in the upcoming year, at least if the German constitutional complaint is not admitted or otherwise rejected. The UK may be in a position to ratify in March, with the PPA and the process of recruitment, appointment and training of judges and other court staff starting in April or May.

The sunrise period, during which patents can be opted out of the UPC, could start in October, and finally, by January 2019, the UPC could open its doors for cases, Mooney hopes.