Pankhuri Malik is an Osgoode LLM Graduate, IPilogue Writer and IP Innovation Clinic Fellow.
In keeping with our previous reports on the Unified Patent Court, it was announced on October 19, 2022, that the Administrative Committee of the Unified Patent Court (“UPC”) confirmed the appointment of 85 judges to the UPC. Further, in accordance with its statute, the Administrative Committee, also shared the composition of UPC’s Presidium.
Essentially, judges have been appointed to UPC’s Court of First Instance and Court of Appeal. Of the 85 Judges, 34 are legally qualified judges and 51 are judges with technical expertise in all the major fields of technology, including Biotechnology, Chemistry and Pharmaceuticals, Mechanical Engineering and Physics.
To be considered for a judgeship, the applicants were required to have experience in patent litigation, be a national of a contracting member state to the UPC, and have command over any one of the official languages of the European Patent Office.
The Court of Appeal will be presided over by Judge Klaus Grabinski, a German Federal Court Judge, and Paris Court of Appeal Judge Florence Butin who will be taking on the role of the President of the Court of First Instance. The Presidium is completed with five more judges from Netherlands, Sweden, France and Germany. Of these judges, three have been appointed to the Court of First Instance and the remaining two will preside over the Court of Appeal.
With the UPC consolidating patent proceedings for the entirety of the European Union, it is expected to host a multitude of legal proceedings. Since all the judges are working on a part time basis, it remains to be seen if the Court will be able to keep pace with the legal actions it is expected to adjudicate on. In the Court of First Instance, at the local or regional division level, unless the parties agree otherwise, a bench of three legally qualified judges will hear each case. Technically qualified judges will only be included on the bench if a party or the panel requests it, or in cases involving a revocation or invalidity-based counterclaim. At the central division, a case in the Court of First Instance will be heard by a bench of three judges, two of which are legally qualified and one who is technically qualified.
The sunrise period of the UPC is expected to run from January 2023 to March 2023, giving patent holders the opportunity to opt-out of the jurisdiction of the UPC.
Evidently, the selected judges are from a wide range of legal, national and technical backgrounds. Many IP enthusiasts had previously raised concerns over the UPC’s composition, worrying that the global pro-patent bias may trickle into the UPC’s decision making as well. While it is unclear as to whether the composition of judges balances both innovators’ and the public’s interests, the diverse backgrounds of the judges seem to reflect an effort towards attaining this equilibrium.