Everything you always wanted to know about the UPC but were afraid to ask

1. The Unified Patents Court and Unitary Patent were first fully envisaged in the Community Patent Convention 1975, as updated in 1989. It has been a long time coming.
   
2. It took 18 drafts before the UPC Rules of Procedure were finally agreed and came into force in August 2022. Such are the joys of drafting by committee. Horses and camels spring to mind.
   
3. It must be something to do with the letter “L” – the seats of the arbitration and mediation service of the UPC will be in Lisbon and Ljubljana. This is very much in line with the EU practice of “spreading things around”. Democracy trumping convenience!
   
4. Despite being the fourth largest economy in the EU, Spain is not joining the UPC. Why? Well initially it seemed to be a sort of national “toys out of pram” moment about language (Spanish is not an official UPC language), but the higher costs of UPC litigation and constitutional uncertainty were later cited as further, more rational, reasons. The sixth largest EU economy – Poland – is also outside the UPC having, so they say, conducted an economic risk analysis after which the computer said “no”.
   
5. Back in October 2022 the UPC Administrative Committee announced a roster of 85 judges in the UPC – 34 lawyers and 51 technically qualified judges. However, some technical judges have decided this is not for them when the consequences of their appointment became clear. The role of UPC judges is mostly part-time and paid by the hour. The judges all expected to carry on their day jobs, but then the little matter of conflicts popped up, as if no one had thought of it before…Oops!
   
6. The procedural rules of the UPC, after the 18 rounds of chat, amount to a fascinating blend of many legal systems, and most notably a rare mix of civil law and common law procedures, following the influence of the UK in the rule making. Unfortunately Brexit came along so the UK is not playing in the new game. Never mind, there’s always Ireland……well there will be when Ireland eventually ratifies after a referendum which might just give rise to the lowest recorded turnout in the history of democracy. In the meantime there is Malta….which is a sort of Roman/British Law hybrid.
   
7. In London’s Aldgate district there is a lovely court building, all decked out and ready to go. Except it can’t go anywhere because the UK is no longer part of the UPC and the third court in the Central Division has had to go elsewhere. After a lot of discussion the basic provisions of the UPCA prevailed and the next most active country in terms of European Patents, after Germany, France and the UK, will host the court. That is Italy, and the court will be in Milan – a very classy place for a visit!
   
8. The highest court for cases commenced in the UPC will be the Court of Justice of the European Union (CJEU) in Luxembourg. The CJEU is legendary for the clarity it has brought to Community Trade Mark law and is now looking forward to doing the same for Patents (Irony Alert!)
   
9. The concept of an international court covering multiple national jurisdictions is not new. Many such courts exist, but they rarely decide cases between legal individuals/companies. Most are to resolve international trade disputes, like the Court of Justice of the Andean Community in Quito, or the COMESA Court of Justice to resolve trade disputes in Eastern and Southern Africa, based in Khartoum. The nearest relation in the patent world is the European Patent Office, though it cannot award damages, injunctions or costs.
   
10. The President of the UPC Court of Appeal, and thus its Senior Judge, is Klaus Grabinski – the well-known and very well-regarded German judge who has been working in the German Courts on patent matters since 2009. He was also involved in writing the procedural rules, so he will, in the truest sense, be marking his own homework if there are disputes about how they are to be interpreted! Perhaps the separation of powers is not so important in the UPC.

There it is – a lot of probably useless facts about the UPC, but possibly more fun than many learned articles on the subject!

Gordon Harris 31^st May 2023 – Quivering with anticipation for the Court’s launch tomorrow!