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How is it going to work? A new update on the UPC Case Management System:

Written by Louise AMAR 29 January 2016

Supplementary Protection Certificate

On Monday 25/01/2016 was organised in Paris a presentation on the UPC Case Management System with the UPC IT Team. The UPC Case Management System is the platform that will allow the submission of actions and their documents before the UPC, the communication with Judges and Clerks, and the free access by the public to all cases and decisions.

This system is therefore central to the UPC and can already be accessed here. Users are encouraged to leave feedbacks to help shape the system, even if as indicated by the IT Team in its weekly newsletter, no further changes will take place until after March 2016, and all feedbacks “will be logged and put in the backlog for future development which will take place in April 2016“.

Below are the main points developed in this presentation which should clarify the major elements of the UPC Case Management System.

IT and Security:

The Case Management System (CMS) will be available from any device. It will require users to register on the UPC CMS. Registered users will need their email address, their password, and a code sent by text to the user’s phone to log in.

Users will have to register twice: first for the trial version of the UPC CMS (you can do so here) and then to the real version of the UPC Case Management System. (See Registration for more info)

The EU STORK system may be used, although not initially. The aim of the STORK project is “to establish a European eID that will allow citizens to establish new e-relations across borders just be presenting their national eID”. This system would allow users to get connected to the UPC CMS with their national login.

Data is stored in Munich, Germany, by a company which is a Deutch Telecomm subsidiary. Two penetration attempts have been simulated and failed. Twenty attacks have already been recorded.

The IT management will be handed over to the permanent IT Team in Luxembourg in March 2016 .

There will be the possibility to connect law firms’ IT system with the UPC CMS  -to obtain alerts for example. There will also be the possibility to synchronise the Court calendar with firms’ calendars.

The Court’s diary and the case history will be publicly accessible. Once on the UPC CMS, the cases will be freely available to be viewed by the public (see confidentiality section for more info).

Arbitration Centre:

The Arbitration Centre will use the same CMS. The Arbitration Centre CMS will however be independent from the UPC. It won’t therefore be possible for the UPC to access the Arbitration Centre CMS.

Registration:

Internal users: Clerks, Judges, Administrators will be registered by the system administration.

External actors: The parties (claimant and defendant) and third parties (witness and experts) will need to apply for registration before being able to access the system.

At the moment the creation of groups is not possible but it will be allowed soon. All users will need to register individually, then one user will become an Administrator and will be able to create a group of representatives. It won’t be possible to have more than one administrator.

Processes:

The IT Team built the UPC CMS around the Rules of Procedure. Therefore, if the Rules do not provide for a specific provision, the IT Team cannot create it in the IT system. By the end of February/Beginning of March the rules of procedure will be finalised and the IT Team will be able to finalise the UPC CMS.

Cases are included within a process of a pre-determined actions: Infringement, Declaration of non-Infringement, Revocation, Compensation for licences, Action against decision of the EPO.

Each action is organised around a system of logically interconnected sub-processes, for example: submit a statement of claim, raise a preliminary objection.

All actions, undertaken at any stage, of the process are recorded and will be the object of an email to the user, confirming that that specific action has been carried out by the user.

Timers are also available for each task. They will ensure that every action is accomplished within the procedural time limit.

Documents:

Every action is built around documents: forms (which will be pre-filed to save time), pleadings, exhibits, orders, applications.

Documents will be stored on the CMS. It is not possible at the moment to create a draft document and keep working on the system but it is possible to create a draft case, which will only become public and available to the court once it is submitted. It will therefore be possible for an external user to update documents until submission.

If the document is submitted by an external user, it can be rejected or validated by a Court member. If rejected, the external user can submit a request of amendment.

In case of a group of representatives, all members will be able to submit documents.

Confidentiality:

Request for confidentiality can be obtained for confidential documents. It is however not automatic and can be challenged. The documents included in the request for confidentiality will be notified to the judge for an evaluation of the documents’ confidential nature.

If the documents are not deemed confidential they will be available to the public. The submitting party can however withdraw these documents. If they are deemed confidential, the party who submitted them must provide a redacted version, which will be available to the public.

It will be possible to create a confidentiality club, which may include the defendants and/or any chosen third party.

Communication:

CMS will send electronic receipts to confirm that the documents have been received and that an action has been performed for the case. The UPC however still has to provide the details of these emails.

The Participants to the Paris’ workshop asked the IT team to have the possibility to attach to the case the communication with the Judge. The IT Team responded favourably to this request.

Audio (Interim Conference) and Video (Final Hearing) record of court sessions will be available on the CMS.

Opt-out:

A patent can be opted-out by filling a form on the CMS. It requires the patent number. Once the patent number is entered, the information will be extracted from the EPO registers, and will be used for the automatic filling-in of the opt-out form.

The EPO’s information might not be up to date, so it will be important to check the pre-filled form and amend any incorrect information. In fact, if some details are missing or are incorrect the opt-out is ineffective until corrected (Rule 5.6).

Once the information is amended on the UPC CMS, it will become public. The EPO will therefore have an opportunity to amend its register. At the moment, there is however no partnership between the EPO and the UPC. It is therefore uncertain whether the EPO’s registers will be updated.

There will be a different opt-out form for the SPCs.

It is presently only possible to opt-out patents one by one. However the IT Team is looking at an option, which would enable patent owners to opt-out baskets of patents (not more than 30).

Claimants will be able to file a claim even if the patent has been opted-out, to prevent a legitimate action to be stopped by a fraudulent opt-out. In fact when submitting a claim for a patent, which is identified as opted-out by the CMS, its opt-out will be flagged and the CMS will identify the cases in which this patent has appeared. If there is a disagreement as to whether the patent has actually been opted-out (for example the claimant could argue that it has not been opted-out by the patent proprietor but by someone else) it will be to the court to decide whether the patent was opted-out.

The method of payment is not yet scheduled as the fees are not determined yet. If there is a fee it will be payable online.

The Opt-out will be ready by March. No exact date however for the public to start opting-out.

Ownership:

The patent proprietor is the person shown in the relevant register. Rule 8.5 however makes clear that this presumption can be rebutted by the actual proprietor by showing that there are entitled to be recorded as proprietor in each country where the patent has been validated, even if  in fact not registered.

Therefore, if the claimant is not the proprietor, they will be required to submit a declaration of proprietorship following Rule 5.3(e), to prove that they can legitimately pursue the case or the opt-out. This document won’t however be checked by UPC officials.  Thus, if a problem arises the validity of the opt-out will have to be challenged before the court.

Fees:

The fees will be decided in February by the Preparatory Committee. The IT Team will then design a user-friendly fee platform to allow users to pay online. No other form of payment will be possible. The assessment of the fee should be based on “fair royalties” as the Preparatory Committee intends to have simple fee guidelines.

Languages:

Where a Member State nominates a language of proceedings both under Article 49(1) and Article 49(2) UPCA, the claimant may choose the language of proceedings subject to:

-Rule 14.2(b)-the “Belgian exemption” which applies when there is only one local exception;

-Rule 14.2(c)-the judge rapporteur may in the interests of the panel of judges order that the decision may be given in the Article 49(1) language together with a certified translation.

Concerning the CMS, the IT Team is now waiting for it to be finalised to start the translations that will enable claimants to have access to the CMS in English, French or German.


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