It has always been assumed that patent attorneys working in the UK who were qualified as European Patent Attorneys under the European Patent Convention would have rights of audience before the Unified Patents Court (UPC), based on appropriate qualifications from Queen Mary, Nottingham, or accepted litigation or advocacy certificates administered by IPReg.
However, we have heard reports that, at a recent meeting of the Preparatory Committee, a proposal has been made to disqualify those with UK-originating qualifications from representing clients before the UPC. This would effectively rule out most UK-based patent attorneys and some from other parts of Europe (particularly Ireland) who happen to have the UK qualifications.
There is a certain logic to this, with the UPC being a creature of the European Union, of which the UK is, of course, no longer a member. However, in truth the new patent system is a hybrid of EU- and EPC-originating rules and the EPC is not an EU-related treaty. Thus, the UK remains a full member of the EPC. The practical upshot of this will be a scarcity of English speaking, common- aw trained, litigators in the formative stages of the UPC. The UPC rules owe much to the influence of the UK as they evolved, with some very clearly common law based principles such as the availability of discovery/disclosure, expert evidence, and cross-examination. Will it be helpful to exclude common law trained litigators and will that be a deterrent to potential US-based litigants, considering using the new system?
Nothing is decided yet, and even in the event that the UK-originating qualifications are no longer sufficient to confer representation rights on UK patent attorneys, they would still seem to be able to acquire those rights by obtaining the European Patent Litigation Certificate qualification. However, the extent to which the cost and time required to obtain that qualification would act as a barrier to UK patent attorneys, at least during the initial stages of the UPC, is unknown. This is an important issue and one we need to be watching closely over the coming months.