“Most of the designated legally qualified [UPC] Judges are highly experienced and have a reputation for not shying away from shaping the law. Many of them have reached important milestones in continental European patent litigation. “
UPC Munich – Central
On February 17, 2023, Germany ratified the Agreement on a Unified Patent Court. This means that the Unified Patent Court (UPC) will definitely start on his June 1, 2023. So it’s time to get your ducks in line and prepare for this new court system. It is important. To facilitate such preparation, we will be offering a series of five articles over the next few months until the system launches covering the most important aspects of the UPC.
Problem 1: Judge
It is common ground that good lawyers know the law and great lawyers know the judges. But who are the judges who have been appointed and are now appointed judges of the UPC?
UPC is a classic European compromise. It consists of the Court of First Instance and the Court of Appeal. While the Court of Appeal has only one seat, the Court of First Instance is made up of one central division in Paris (seat) and Munich, and 13 local/regional divisions currently distributed among the 17 UPC member states. I’m here. (For more information, see Unified Patent Court | Unified Patent Court (unified-patent-court.org)).
There are currently 85 UPC judges, of which 34 are legally qualified and 51 are technically qualified. When the new system comes into effect, almost all judicial and even technically qualified judges will be part-time. This situation is because the UPC is a self-funded system (like the European Patent Office) and budget constraints necessitated a part-time approach. However, should this system become a success story (which most European stakeholders are hoping for), a rapid “change from his currently appointed UPC Judge part-time to full-time his UPC duties” You can expect an upgrade. This likely scenario entails a significant brain drain to Continental European patent litigation in each country. As a result, the country’s judicial system will need to appoint new (possibly) inexperienced national judges. Thus, national venues that were highly predictable in the past may become less predictable in the future (not only for designing global enforcement but also for global defense strategies). is also an important factor for designing In this regard, it is also worth noting that additional new UPC Judges can be added to the list of current UPC Judges at any time. When such additions are made, it will again depend on the number of cases filed with the UPC, especially in the months after the new system comes into force.
After studying the roster of 34 legally qualified UPC judges, the following thoughts quickly come to mind. (Rumor has it that almost all of the first-instance court judges in domestic patent litigation have done this. One of the reasons is that the UPC’s remuneration is much better than the national level. may have been the case).
The selection of these “best in class” judges is the cornerstone of the new system’s success. The 51 technically qualified judges were recruited primarily from private patent attorneys. This is due to the fact that most UPC Member States do not have technically qualified professional judges. The German Federal Patent Court is an exception to the rule in this respect. Technically qualified judges cover her five areas of expertise: Biotechnology, Chemistry/Pharmaceuticals, Electrical, Mechanical Engineering and Physics.
Most of the designated legally qualified judges are highly experienced and have a reputation for not shying away from shaping the law. Did. Summarizing these decisions, it is reasonable to assume that the UPC can be expected to handle patent litigation in favor of patentees. This assumption is supported by a study of the Agreement on the Unified Patent Court (UPCA) and the Rules of Procedure (ROP). Few clauses are clearly in the hands of defendants. In fact, the verbatim application of the UPCA and ROP actually gives patent owners a head start. This is due to the fact that ROP has incorporated a Rocket Docket timeline in his schedule for his one-year time from filing a complaint to trial. It is worth noting that the UPC must determine both infringement and invalidity within this period.
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In the Court of Appeal, special attention should be paid to two judges in particular. Namely, Dr. Klaus Grabinski (Germany) and Ryan Calden (Netherlands), who head his two panels in the Court of Appeal. Justice Gravinsky was also appointed president of the court. Like the US Court of Appeals for the Federal Circuit, the UPC Court of Appeals is tasked with ensuring consistent application of the new UPC case law. Judge Grabinski is a former President of the Düsseldorf Regional Court (Patent Court) and the Düsseldorf Court of Appeal (Patent Court). The Düsseldorf District Court is Europe’s most important patent trial court and is known for applying a broad range of function-oriented claim constructions. In light of the fact that German and Dutch case law are somewhat similar in this respect, it is certainly not unnatural to assume that the UPC also accepts broad functional claim construction. Judge Grabinski is currently Vice-President of the German Federal Supreme Court (Patent Senate). His experience in patent litigation matters is unmatched. A true UPC enthusiast in his own right, from the early days he was involved with the UPC system. Judge Calden is a Senior Judge at the Court of Appeals in The Hague. She is known for her patentee-friendly stance on SEP issues. Ms Kalden made a landmark decision regarding implementers’ (un)willingness to license on her FRAND terms (ECLI:NL:GHDHA:2019:3535) and this soon became Taken over by the Supreme Court (Case No. KZR 35/17; KZR 36/17). So it’s no surprise that the UPC has followed a rather rigid approach with respect to “will” requirements.
The district courts of Düsseldorf, Hamburg, Mannheim, Milan, Munich, Paris and The Hague have their own criminal constitution, as two of the three panel judges are district judges of the states hosting the district courts. I’m here. All other local divisions will have only one local his judge on the panel. As a result, it can be expected that the German, French, Italian and Dutch divisions, at least in the first phase of the UPC system, tend to produce case law that mirrors their national case law. Forum shopping, inherently related to the predictability of incident outcomes, also plays an important role. Analyzing the judges of the individual trial courts of these districts, there is no doubt that the following names play an important role: His Zigann Judge of the Munich District and his Pichlmaier Judge He is well known for his lenient approach to matters and his friendliness to patentees. Case Law in Standard Essential Patent (SEP) Cases. The latter certainly also applies to the Mannheim District, to which his two highly experienced Patent Appeal Court judges, namely his Judge Kircher and his Judge Tochtermann, were assigned. In pharmaceutical matters, Hamburg’s provincial department could be his hot spot, as Judge Klebsch, who studied both law and chemistry, will join the panel. As such, a unique expertise in pharmaceutical issues exists in this regional sector.
The bottom line is that you will see a lot of competition between local departments. This competition is driven by the fact that a UPC judge’s tenure is only his six years. Given the above fact that the UPC is a self-funded system, there exists a structural incentive for local division judges to attract cases, thereby ensuring the extension of their initial appointments. .
