Category: News

Posted on

Last meeting of the Preparatory Committee before the provisional application phase:

Brexit and the German constitutional challenge

Last meeting of the Preparatory Committee:

The UPC Preparatory Committee met for the last time last week in the Hague. It was an opportunity for the Preparatory Committee to agree minor amendments to the Rules of Procedure, which it will soon publish.

The Provisional Application Phase:

This meeting signals the start of the next stage of the UPC, the provisional application period. This period will start after 13 states, that have already signed and ratified the UPCA, approve the protocol on provisional application. (See here for more on the Protocol on Provisional Application). The Preparatory Committee declared that “the Committee (is) confident this would happen in order to enable the provisional application to start at the end of May 2017“.

The Protocol is necessary for the Court to make preparations before it becomes operational in December 2017. The provisional application phase will notably see the nomination of judges, whose process of recruitment has now started. It will also allow for the testing of the IT system and “ensure resources are in place and trained in readiness for the Court opening”.

Posted on

The UPC to become operational in December 2017: The new timetable for the UPC start of operation

The Preparatory Committee published a new timetable for the UPC’s start of operation, indicating that:

  • The Provisional Application Phase would start at the end of Spring 2017 (presumably in May). It will allow for judicial interviews to take place and appointments to be confirmed.

 

  • The possibility to opt-out European patents will start in early September.

 

  • The UPCA would enter into force in December 2017.

 

  • The UPC would thus become operational in December 2017 too.

 

The Preparatory Committee however warns that this timetable is “conditional and provided with the clear disclaimer that there are a number of factors that will dictate whether it is achievable. The most important factors in meeting these dates is the necessary ratifications of the UPCA and accession to the Protocol on Provisional Application.”

It is expected that the next meeting of the Committee which will take place in March gives more details and updates as to whether the UPC will effectively become operational in 2017.

 

More on the Provisional Application Phase:

On 1st October 2015 a protocol to the UPCA was signed by some member states to 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“, or the very much talked-about early registration of opt-out demands. The protocol aims at permitting a smoother set up of the court.

It will enter into force after 13 states, that have already signed and ratified the UPCA, approve the protocol either by signing or approving it. So far 9 Member States have signed it (Germany, Denmark, France, UK, Hungary, Luxembourg, Romenia, Slovenia, Sweden) . The UK has however entered a reservation, stating that it “shall not provisionally apply Article 4 of the Agreement on a Unified Patent Court.”

As a reminder, Article 4 provides that ” (1) The Court shall have legal personality in each Contracting Member State and shall enjoy the most extensive legal capacity accorded to legal persons under the national law of that State. (2) The Court shall be represented by the President of the Court of Appeal who shall be elected in accordance with the Statute.”

For more information see our posts on the Protocol on provisional application of the Unified Patent Court Agreement here and its update here.

 

Posted on

A new local division in Milan and an update on judicial recruitment:

The Unified Patent Court announced that the Italian local division location had been chosen by the Italian authorities and will be ready by mid-June 2017.  It will be hosted within the premises of the new Milan Courthouse, and pictures of the building can be viewed here.

This new location completes the list published by the Unified Patent Court in February 2016 and commented on our blog, which includes the locations of:

  • The court of Appeal in Luxembourg,
  • The central (Munich) and local (Munich, Mannheim, Dusseldorf and Hamburg) divisions in Germany,
  • The Nordic-Baltic regional division in Stockholm, and
  • The central division in London. However, the UK’s decision to leave the EU jeopardizes the existence of a UPC division in the UK, and it seems very likely that the chemistry and pharmaceuticals central division will be relocated to a different country.

Regarding the judges who will be sitting in these courts, the UPC has announced that the recruitment timetable has been revised in light of the Brexit, and it appears that no appointment will be made in early 2017, as originally announced.

In fact, as explained by the UPC, “(w)hilst the preparation of candidates’ selection has continued, the commencement of the next phase which would include calling candidates for interview, has to be re-scheduled as the appointment procedure, which will be led by the future Committees of the UPC, is dependent on the entry into force of the Protocol on Provisional Application and subsequently the Agreement on the Unified Patent Court” …

Posted on

17th meeting of the Preparatory Committee in Stockholm

Brexit and the German constitutional challenge

The Preparatory Committee held its 17th meeting in Stockholm on 30th June, where it visited the premises of the Regional Division of the UPC located within the District Court of Stockholm. 

The communiqué published by the Preparatory Committee mentions that the “Committee endorsed a number of papers, namely a set of rules on financial management during the period of provisional application, how to structure the corporate functions, and regulations relating to judges and staff. Some minor technical work is to be completed on these items during the summer but the Committee is not expected to have to come back to them in meeting”.

It also appears that the Committee agreed on a set of consequential amendments to the Rules of Procedure  to include provisions on  court fees and the Code of Conduct which had been previously agreed by the Committee.

Finally, the Committee endorsed the UPC’s draft budget, but made clear that the budget will be a “live document subject to changes before finally adopted by the Administrative Committee”.

The Committee will meet next in early October 2016.

Posted on

The Unitary Patent identified as the single most important IP issue this year

Last week, Taylor Wessing published its fifth Global Intellectual Property Index which assesses how intellectual property regimes around the world compare with each other. The Index also identifies the  IP hot topics among its 8,500 individual assessments from senior industry figures, and this year the Unitary patent was identified as the single most important IP issue!

Just two days before the Brexit referendum we can only hope that this enthusiasm carries weight in the UK’s decision to stay or leave the EU…

Posted on

Fresh News on the UPC from Alexander Ramsay’s visit in Paris

Today the Union pour la Juridiction Unifiée (UJUB) hosted an event on the Opt-out in Paris in which the following news were announced:

  • The sunrise period’s start is scheduled for October 2016, once the Protocol on the UPC Agreement  has been ratified by 13 states having ratified the UPCA.

 

  • The coming live of the UPC is on the other hand expected for Spring 2017.

 

  • The IT team as well as Alexander Ramsay however warned that due to the uncertainty of the ratification process and the coming referendum in the UK on its EU membership the sunrise period and the coming live of the UPC might be delayed.

 

  • Alexander Ramsay also confirmed that the UPC should run its course even if the UK decides to leave the EU although the Brexit would impact the present schedule.

 

  • It is highly likely that the Preparatory Committee will have finished its work at the end of June 2016, and will be replaced by the Administration Committee and the Budget Committee.

 

  • Last but not least, Bulgaria has deposited its instrument of ratification on Tuesday 31/05/16. Ten countries have thus now ratified the UPCA.
Posted on

Want to test the online procedure for registering unitary effect?

The EPO has created for the existing users of its Online Filing software a plug-in, which simulates the drafting, signing and sending of a request for unitary effect and filing of subsequent documents in a demonstration mode.

Users are invited to send their feedback on the demo to uppolffeedback@epo.org until 31 July 2016.

The EPO however makes clear that “the demo is purely for test purposes only and that completion of the registration procedure has no effect”, the final and operational version of the software will in fact be available before the unitary patent system enters into force.

For a full-on experience, it is still possible to test the UPC Case Management System  here.

 

Posted on

16th meeting of the Preparatory Committee: a specific focus on Human Resources and Financial issues

Brexit and the German constitutional challenge

The Preparatory Committee has published today the report on its last meeting, which took place in the vicinity of the future UPC local division of Hamburg.

Although the report published does not give any detail on the decisions adopted by the Committee, it appears that the Preparatory Committee focused specifically on human resources and financial issues.

The Preparatory Committee is notably working on issues of pensions, payroll, and health care with the International Service for Remunerations and Pensions. It also announced that the training framework of the UPC was agreed, therefore allowing the Budapest training centre of the UPC to proceed with the planning for training for the first year of operation.

The Preparatory Committee also dealt with issues relating to the contributions of Member States during the provisional application period and the first year of operation. The Co-coordinator of the Financial Working Group, Jean-Francois Magana reported  that the work is well advanced and that Member States will have a good basis to prepare their first contributions to the budget of the Court. To cater for this specific period the Committee also agreed on a set of adaptations to the Rules of the Administrative, Advisory and Budget Committees and discussed corresponding adaptations for the financial management of the court during this period of time.

Finally, the Preparatory Committee reports that the work on the IT system is progressing well although “it is clear that the IT environment of the Court is an area that will need constant development and attention”.

The 17th meeting of the Committee will be held in Stockholm (future location of the Nordic-Baltic regional division) on 30 June 2016.

 

Posted on

A Code of Conduct for the representatives before the UPC: The recommendations of the Council of Bars and Law Societies of Europe

Last week, the Council of Bars and Law Societies of Europe (CCBE) published its comments  on the Code of Conduct for the representatives before the UPC, drafted by the EPLAW, EPLIT and epi .

The CCBE  thereby responds to the Preparatory Committee’s declaration, after its last meeting on 14th April 2016, that the Code of Conduct would be agreed at the end of May, for it to be ready for the UPC’s entry into force in February 2017.

Rule 290 and 291 of the UPC Draft Rules of Procedure in fact respectively provide that representatives before the UPC must comply with the Code of Conduct and if in breach may be excluded from the proceedings by the Court.

The UPC draft Code of Conduct has not however been made public yet, and the CCBE has not had access to it. The CCBE’s general comments therefore provide a helpful insight into the core principles that should govern the UPC Code of Conduct, and, raise important questions about issues such as independence, impartiality and interpretation.

The CCBE focuses on seven points:

  • “A minimum standard”: The CCBE, fearing that it would be difficult to design “a single Code of Conduct for all representatives covering all matters”,  invites the Preparatory Committee to clearly identify the basic legal principles applying to all representatives irrespective of their nationality or position (lawyer, patent attorney, solicitor, etc) to ensure a minimum standard for all appearing before the Court.
  • “Enforcement of the code”: The CCBE recommends that complaints from the Court about the representatives’ behaviour be “adjudicated  by a relevant body rather than the judges themselves or the Court”.  The CCBE in fact highlight, that the UPC judges may not have been trained to handle complaints, and, that an independent body would be a guarantee for impartiality .
  • “Complaints procedure”: The CCBE warns that “(n)either the Rules of Procedure nor the Code appears to explain how a complaint of a breach of the Code is to be made, whether anyone is free to make such a complaint, to whom they should complain, nor whether there is any time limit”.
  • “Possible conflicting obligations”: The CCBE has identified areas where the UPC Code of Conduct and national codes of conduct may conflict, resulting in impossible ethical dilemmas for representatives who would not be able to comply with both codes. The CCBE therefore calls for a careful review of compatibility of all codes of conduct.
  • “Appeals”: Neither the Rules of Procedure nor the Draft Code of Conduct explain the appeal procedure allowing the representatives to challenge a sanction. The CCBE alerts the Preparatory Committee of this oversight and advises against designating the UPC Court of Appeal as the appropriate appeal mechanism, which might lack the required independence.
  • “Sanctions”: The Rules of Procedure appear to indicate that there is only one sanction available to the UPC judges under Rule 291, namely exclusion from the proceedings. The CCBE however points up that “Regulators and Ethics Committees enforcing Codes of Conduct normally have available to them a wide range of sanctions so that they can deal proportionately with each complaint”. In fact, as explained by the CCBE, the consequences of an exclusion  can be very severe and significantly affect both parties.
  • “Interpretation of the code”: The CCBE advises the Preparatory Committee to clarify whether the  Code is to be interpreted strictly or liberally, i.e. whether the code of Conduct contains general principles or “detailed and unambiguous regulations”.

The CCBE concludes it letter by regretting not to have more time and more opportunities to contribute to the UPC Code of Conduct, a view shared by the UPC Blog. In fact, a consultation of the future UPC representatives on the Code of Conduct that will regulate their behaviour before the Court would certainly have been very fruitful.

The CCBE’s letter of comments can be found below. 

[embeddoc url=”http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/CCBE_President_lette1_1462522685.pdf”]

Posted on

The recruitment of Judges for the UPC has started

UPC Judges recruitment 2019

The Unified Patent Court announced on its website the start of the recruitment of the legally and technically qualified  judges  for the UPC Court of First of Instance and Court of Appeal.

The vacancy notices have been published in French, English and German and the application deadline is 04 July 2016. The announcement can also be found here.

The appointment procedure will then be finalized after the entry into force of the Protocol on Provisional Application and subsequently the Agreement on the Unified Patent Court.