From the Call of Expression of Interest in 2013 to the Selection Process in 2016, a quick overview of the UPC Judges’ nomination.
UPC Judges a Summary:
En route the Unified Patent Court: What lies ahead for the the UPC?
The UPC’s entry into force is scheduled for January 2017, but a few steps still need to be completed. This schema summarises the important dates that lie ahead for the UPC.
On your marks, get set, go! Candidates Judges will be able to apply for the UPC before the end of March 2016.
A recent interview of Sir Robin Jacob, Chairman of the UPC Advisory Committee, gives indications as to the procedure and timeline that the UPC will follow to select and appoint judges. This selection should start within two months, with the publication at the end of February/beginning of March 2016 of an announcement and online application.
In 2013 an initial call for expression was published and received over 1300 responses, a much higher number than expected. This was not a formal job application but “an initial assessment prior to the formal application process” which allowed the UPC Advisory Committee to identify 354 eligible legally qualified judges and 341 eligible technically qualified judges. Out of these candidate Judges, 183 required training and about 20 of them were sent to Budapest last year to learn about basic patent law. Candidates who applied to this first call of expression and new candidates are now invited to submit their application to the new formal recruitment process.
The new online application process should allow the Advisory Committee’s Human Resources and Training group to identify very quickly the legal, technical and languages expertise of the candidate judges and therefore facilitate the selection process. It is expected that about fifty legally and fifty technically qualified judges will be selected. The number of appointed judges will initially be kept small to match the expected workload. A pool of appointable candidates will nonetheless be on hand to allow the UPC to respond if needed to high numbers of cases.
The fact that most judges will be working part-time for the UPC raises however two issues. First under the UPCA, national judges are allowed to work part-time at the UPC but lawyers can only do so with special permission. This, as highlighted by Sir Robin Jacob, can be a problem for countries such as the UK which have a specific tradition of using lawyers as judges on a part-time basis. Moreover, some countries do not permit their judges to be part-time, and this will necessitate an amendment of national laws.
UPC Judges training and appointments- What are the next steps in 2016?
As posted here the training for 18 “Extra Training Judges”and Technically Qualified Judges started in 2015. The next steps for the nomination in 2016 of UPC Judges were discussed at the EPLAW Congress in Brussels on 7th and 8th December 2015. It appears that:
- The positions will be advertised in Spring 2016 (End of february-beginning of March), with the aim of appointing judges in September 2016.
- The training of “Further Extra Training Legally Qualified Judges” will then take place in July 2016.
- Another training of 100(4 cohorts of 25) potential Legally Qualified Judges will start in Budapest in September 2016 with a specific emphasis on the rules of Procedure and Judgecraft in the context of mock proceedings.
- The training of potential Technically Qualified Judges will start in September 2016 at the CEIPI in Strasbourg.
Alexander Ramsay, the Chair of the Preparatory Committee, on the UPC latest developments:
Alexander Ramsay, the newly elected Chair of the Preparatory Committee and Deputy Director at the Division for Intellectual Property and Transport Law Ministry of Justice in Sweden, talks about the latest developments of the Unitary Patent package in an interview published on 15/12. Here is a summary of the activity of the Preparatory Committee and the last steps that must be taken before the entry into force of the UPCA:
Introduction date of the Unitary Patent Package:
The Preparatory Committee is trying to conclude its preparatory work by mid-2016. This will then be followed by “a period of provisional application of at least 6 months where after the UPC Agreement can enter into force and the Court become operational. However to start provisional application 13 Member States, including France, Germany and the United Kingdom, will need to ratify or at least get parliamentary approval to ratify the Agreement.”
Latest development of the UPC:
- The Rules of Procedure were agreed, but will need to be amended when the Committee agrees on court fees and the ceilings of the recoverable costs.
- The Committee conducted a consultation on the court fees and the ceilings of the recoverable costs and is now considering the outcome and working on an adjusted proposal.
- Development of IT is on track. IT system will start to be “tested, fine-tuned and adjusted” in the beginning of 2016.
Costs and Fees:
- The Preparatory Committee “is likely to be able to conclude its work in December 2015 on the level of the renewal fees, the distribution of income from the renewal fees and the implementing rules“.
Protocol on the provisional application of the UPCA:
- The provisional agreement on the UPCA will allow for the organisation and all the formal organs of the Court to be formally established.
- This will allow for all decisions to be taken “in the good order prescribed by the Agreement, e.g. employ judges, form a Presidium and elect the two Presidents”.
- It will also allow the judges to prepare and test run all the systems before the entry into force of the Agreement.
- Finally, it will also be possible to file opt-outs at the Registry. The opt-outs will therefore be effective from the first day of the entry into force of the Agreement.
The overview of the 13th meeting of the Preparatory Committee can be seen here.
The secondary legislative framework necessary for the implementation of the UPC adopted by the Select Committee
The Select Committee adopted on 15/12/15 a series of agreements necessary for the implementation of the Unitary Patent package:
- The Rules relating to Unitary Patent Protection,
- The Rules relating to Fees for Unitary Patent Protection,
- The Rules relating to the distribution of fees amongst the participating Member States,
- The Budgetary and Financial Rules.
The Committee has therefore now put into place a comprehensive and complete secondary legal framework for the unitary patent, which will allow for the implementation of the Unitary Patent package.
As the EPO President Benoît Battistelli declared, the legal far: “This is a hugely significant occasion for the European patent system. With the adoption of these rules today, the preparations for the unitary patent are complete. We are now legally, technically and operationally ready to deliver the unitary patent. The only remaining step is the opening of the Unified Patent Court and the finalisation of the ratification process at national level. We hope this will happen in 2016 and we are convinced that it will boost innovation in Europe and will be beneficial for the European economy, especially for European SMEs.”
As a reminder: The Unitary Patent system and the Unified patent Court will only come to life once thirteen states, including France Germany and the UK, have ratified the Unified Patent Court Agreement. So far eight states, including France, have ratified. See our posts on ratification here.
Distribution key of the renewal fee income adopted by the EPO:
On 17th November the European Patent Organisation adopted the distribution key for the repartition of the 50% share of the participating Member States in the renewal fee income among them.
In fact while the EPO retains 50% of the renewal fee income, its Select Committee had to decide how the apportionment of the 50% share of the Unitary patent renewal fees would be apportioned amongst the participating EU Member States.
According to Bristows “it has been agreed that for an initial period of operation the 50% of the fees (minus an administrative charge) will be distributed according to a formula that takes account of the GDP and the number of applications filed from each participating Member State.“
Updates on the Protocol on Provisional Application of the Unified Patent Court Agreement:
The Protocol on Provisional Application of the Unified Patent Court signed on 01/10/15 has had a few updates since its our first post:
- Hungary signed the Protocol on 07/10/15 after its representative was prevented from signing the Protocol on 01/10/15, as the necessary Hungarian legal requirements had not been completed on time.
- The Netherlands made a declaration stating that it will be bound by the provisional agreement from the day it will ratify the Unified Patent Court Agreement.
- The United Kingdom made a reservation to the Unified Patent Court Agreement stating that it “shall not provisionally apply Article 4 of the Agreement on a Unified Patent Court”.
The Protocol will allow “final decisions on the practical set up of the Court” to enter into application such as the “recruitment of judges and testing of IT systems“, to permit a smoother set up of the court. The provisional application phase will also be used to allow for early registration of opt-out demands.
“Unitary patent protection: what’s next?” Conference in Vilnius:
The State Patent Bureau of the Republic of Lithuania organises a conference on the topic “Unitary patent protection: what’s next?” which will take place on 19 November, 2015 in Vilnius, Lithuania.
According to the European IPR Helpdesk, the main focus of the conference will be “to review and evaluate current approaches and developments in relation to unitary patent and the UPC, such as: renewal fees and their distribution, court fees and other litigation expenses, overview of EPO Select and Preparatory committees’ activities and other latest developments“.
Participation is free of charge, but the number of participants is limited. Conference registration required by e-mail: registracija@vpb.gov.lt.
UPC Case Management System Workshops:
The UPC Taskforce is introducing the Case Management System for the Unified Patent Court in different European cities to patent lawyers, judges and clerks. The UPC Taskforce describes these workshop as “interactive giving you the chance to give feedback and help define the process”. For those of you who are particularly eager to know more about how this case management system will work, the remaining workshops will be held in :
The Hague – 11 November,
Luxembourg – 17 November,
Dusseldorf – 1 December,
Munich – 2 December and
Rome – 10 December
Most events however are fully booked, there are only some seats left in Munich. You can register by clicking on the link above.