What to do to get ready for the Unitary Patent and UPC
19th December 2022
Judges shall be appointed for a term of six years and may be re-appointed. Judges must be nationals of a Contracting Member State and have a good command of at least one language of the EPO. Following appointment, judges will be allocated to a Pool of Judges composed of all legally qualified judges and technically qualified judges from the Court of First Instance who are full-time or part-time judges of the Court. The Pool of Judges shall include at least one technically qualified judge per field of technology. The technically qualified judges from the Pool of Judges shall also be available to the Court of Appeal.
For each case before the Court of First Instance, a panel of judges is allocated. A panel of the Court of First Instance shall have a multinational composition and sit in a composition of three judges. The judges are allocated from the Pool of Judges by the President of the Court of First Instance based on their legal or technical expertise, linguistic skills and relevant experience. These judges may be augmented by a further judge technically qualified in with qualifications and experience in the field of technology concerned.
The selection from the pool of judges is made according to a number of criteria which ensure a balance of Judges from the member states of the parties concerned in the case and other member states. A provision also exists to ensure that Judges from member states with fewer cases on average sit with two judges who are not from such contracting states.
A panel of the Court of Appeal shall sit in a multinational composition of five judges including three legally qualified judges who are nationals of different Contracting Member States, one of whom shall chair the panel, and two technically qualified judges.
A single language of proceedings will be determined for the Court of First Instance and again for the Court of Appeal. Every document will normally need to be translated into the language of proceedings. The party submitting the document will bear the costs for the translation. At the request of one of the parties, and to the extent deemed appropriate, any division of the Court of First Instance and the Court of Appeal shall provide interpretation facilities to assist the parties concerned at oral proceedings.
The language of proceedings before any local or regional division shall be an official European Union language which is an official language of the Contracting Member State hosting the relevant division, or an official language designated by Contracting Member States sharing a regional division. Additionally, Contracting Member States may designate one or more of the official languages of the European Patent Office as the language of proceedings of their local or regional division. In practice, given the multinational composition of the panels of judges, this means that English is likely to be the dominant language of proceedings.
Under certain circumstances, the language in which the patent was granted may be used as the language of proceedings. If the panel of judges does not approve of this, the parties may request that the case be referred to the central division where the language of proceedings is always the language in which the patent was granted.
In cases where an action for infringement is brought before the central division, a defendant may have rights to obtain, upon request, translations of relevant documents.
The language of proceedings before the Court of Appeal shall be the language of proceedings before the Court of First Instance unless the parties agree on the use of the language in which the patent was granted as the language of proceedings or, subject to the agreement of the parties, the Court of Appeal may decide on another official language of a Contracting Member State for the whole or part of the proceedings. When a different language is used, the judge-rapporteur may order the appellant to lodge translations into the language of the proceedings before the Court of Appeal.
Parties may be represented by lawyers authorised to practise before a court of a Contracting Member State or European Patent Attorneys who are entitled to act as professional representatives before the European Patent Office and have appropriate qualifications such as a European Patent Litigation Certificate. The list of such appropriate qualifications includes a number of certificates issued in the UK, but they must have been successfully completed or granted by 31 December 2020.
Representatives of the parties may be assisted by patent attorneys, who shall be allowed to speak at hearings of the Court in accordance with the Rules of Procedure.
Since the panels of judges of the courts of the first instance must have a multinational composition and English is the language of grant of a large proportion of European patents, it appears likely that English will become the dominant language of proceedings before the Unified Patent Court.
This article continues FRKelly's series on the upcoming Unitary Patent and Unified Patent Court. For more details, check out the following articles:
Further articles will be posted to our UP/UPC page.
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