EU Unified Patent Court Judicial Training Centre Launches

The European Union Unified Patent Court agreement has not yet been fully ratified but plans are on track to ensure that the judges who staff it are of the highest quality, speakers said at today’s opening ceremony for the judicial training centre in Budapest, Hungary. Future UPC users still have some concerns about the new system, but are giving it a generally good reception, the chairman of the UPC Preparatory Committee said in a webcast.

The training centre is the first concrete piece to be put in place since the UPC agreement was signed in 2013, European Patent Office President Benoît Battistelli told the meeting. One might ask why a patent authority such as the EPO is so enthusiastic about the creation of a patent court system, he said: “I’m deeply convinced” that an efficient, balanced patent system needs an efficient, balanced patent judicial system.

The European Patent Convention laid down provisions that apply to any patent in Europe after its grant, and national judges apply those harmonised provisions, Battistelli said. But national approaches to the issues vary, and achieving full convergence of patent laws means going beyond standardisation of statutes, he said. The aim is to create a “truly European mindset” among European patent judges, he said.

The Office for Harmonization in the Internal Market (OHIM) administers the European trademark and design systems but it has a role in setting up the UPC, said President António Campinos. OHIM, which is about to celebrate its 20^th anniversary, has accumulated a great deal of experience in trademark and language training, and also has extensive knowledge about appeal matters. The office has also built a 600-strong network of judges, and now cooperates with the EPO in training events for the judiciary, he said.

The preparatory committee is working hard on practical steps, said committee Chairman Paul van Beukering, who heads the intellectual property unit of the Netherlands’ Ministry of Economic Affairs, Agriculture and Innovation. The goal is to ensure that the UPC is fully operational from the outset, with trained judges and staff, resources, an electronic case management and filing system, and other attributes, he said. The UPC website is here. The UPC agreement currently covers 25 EU member states; Spain and Italy have not yet joined (Croatia’s UPC status is unclear).

Concerns about Opt-Out, Patent Trolls

The committee’s legal group is preparing court rules of procedure, van Boukering said. There are more than 350 draft rules now.

Reaction from future users has been generally positive, with some reservations, he said. These include questions about how the transitional regime will work. During the shift to the UPC, it will be possible for patent court users to opt out of the new system. As to whether this threatens the UPC, he said, “Frankly, I am not afraid.” The new system must gain users’ trust and will only do so by issuing good judgements, he said. The opt-out clause will avoid logistical nightmares for the court on its first day of existence.

In addition, US companies worry that the UPC will become the “next playground for patent trolls” (non-patent practising entities), van Boukering said. The preparatory committee takes those concerns seriously, but the EU patent differs from US patent, and the UPC will be different from US patent courts, he said.

The 16^th draft of the court procedures was published last week along with public comments, van Boukering said. There will be a public hearing later this year, after which the preparatory committee will adopt the rules, he said. It will start information technology procurement and issue rules on UPC fees and recoverable costs this spring, he said.

Eligibility Conditions “Stringent” But Fair

The UPC agreement contains clear requirements for judges and the training centre, said Amb. Olivér Várhelyi, Preparatory Committee human resources and training group co-ordinator, and deputy permanent representative of Hungary to the EU. Because court credibility and user trust are essential, attention is strongly focused on training, he said. Conditions for UPC judge eligibility are “stringent” but not unfair, he said.

Judges will need a high level of patent litigation experience, Várhelyi said. During the preparatory phase, the committee must organise training for potential candidates who lack experience but have the right qualities to become UPC judges, he said.

The committee is using the ratification period for a pre-selection process in which would-be candidates will be trained. They will not, however, be considered candidates until ratification is complete, Várhelyi said. The pre-selection list hasn’t yet been adopted, he said; once that happens, the committee can create the first candidates’ list and launch the first elements of the training programme. It’s not clear yet how many judges there will be, he said.

The panel received 1,300 applications when it expected only around 300. There were twice as many technically qualified as legally qualified applicants, Várhelyi said. The latter included judges and lawyers with experience in litigation but not necessarily patent litigation, he said. They will need substantial training on EU patent law and may also need language training in at least two of the EPO languages (English, French and German). They’ll also need common drafting skills and know-how for the UPC. Technically qualified applicants were mostly patent attorneys, but some may need training in civil procedures and drafting documents in the EPO languages.

Training will likely be handled through e-learning courses, mock trials, internships and workshops, Várhelyi said. The committee has been “extremely pragmatic” about funding training, saying UPC member countries should use in-kind services that don’t create additional costs and build on existing training facilities and tools from the EPO, OHIM and other institutions.

Asked at a press conference how many divisions of the UPC he expects, Várhelyi said that is not yet clear. There is a trend toward regional divisions with a more limited number of local divisions, he said. The committee is still considering judges’ salaries, but the figure is likely to be somewhere between national salaries and those of the European Court of Justice, he said.