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AIPLA Annual Meeting 2014 What speaks in favour of Opting -out ?

AIPLA Annual Meeting 2014 What speaks in favour of Opting -out ?. Prinzregentenplatz 7 81675 Munich T +49(0)89.928 05-0 pagenberg@bardehle.de. Dr. Jochen Pagenberg Attorney-at-law, Munich Past President EPLAW.

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AIPLA Annual Meeting 2014 What speaks in favour of Opting -out ?

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  1. AIPLA Annual Meeting 2014Whatspeaks in favour ofOpting-out? Prinzregentenplatz 7 81675 Munich • T +49(0)89.928 05-0 pagenberg@bardehle.de Dr. Jochen Pagenberg Attorney-at-law, Munich Past President EPLAW

  2. Myanswer: Everything, but above all:I. Thequality of judgesistodayunknownPolitical promise:“UPC system must not be less efficient and of lower quality than the best national systems”Unanimous support by the members of the EU Commission’s Expert Committee

  3. II. Legal Rules first approved Art. 15 UPC- Eligibility criteria for the appointment of judges(1) [..] Judges shall ensure the highest standards of competenceand … haveproven experience in …. patent litigation.

  4. What was later changed by politicians behind closed doors can be found in the UPC Statute Art. 2 Eligibility of judges(3) Experience with patent litigation which has to be proven for the appointment pursuant to Art. 15 (1) of the Agreement may be acquired by trainingunder Article 11(4)(a) of this Statute .[Highest proven experience in class?]

  5. UPC Statute Art. 11 Training(2) The training framework shall provide(a) …organisingcourses, conferences, seminars, workshops and symposia[missing: working as a judge and deciding cases]

  6. Art. 11 Training(4) The training framework shall in addition: (a) ensure appropriate trai-ningfor candidate-judges and newly appointed judges of the Court[Candidate-judges and newly appointed judges certainly need training, but what has this to do with proven experience which judges should possess as a condition for recruitment?]

  7. Can “[theoretical] training” beregarded as equivalent to “proven experience in the field of patent litigation” ?Explanation fromBrussels:„The reasonisgeographicaldiversity - itis a politicaldecision“

  8. Among the 24 participating member states there are 14 whose courts have less than 10 patent cases per year; and a handful of them have not even had one single patent case at all.

  9. III. Views of StakeholdersDidthepoliticiansknow – and care (!) - abouttheimportance of qualityandexperience of thejudgesforthesuccess of thewholesystem?

  10. Results of an Academic Survey amongprospectiveusers:Q: What do youregardasthemostimportantfeature of the UPC?No.1 Answerby Stakeholders*qualityexperience, andpredictability of decisions*Dr. Luke McDonagh, Cardiff Univ., Exploring Perspectives of the Unified Patent Court and Unitary Patent Within the Business and Legal Communities

  11. Citations of Answers in the Survey “The crucial thing the planners must do is to set up a high quality system of decision-making”“It is crucial that potential users of the court perceive the UPC as being a venue for high quality and consistent decision-making” “All said that policy-makers must take the issues of judicial composition and quality very seriously”

  12. And what do policy-makers do? They disregard the legal condition of highest standards of competence andproven experience in the field of patent litigationand replace it by broad geographical diversityand thereby weaken the system at its most sensitive point

  13. IV Uncertaintiesandrisk-takingFortheOpt-out decisionmuch will depend on Costwhich will not beknownbefore 2015Annuities vs. userschoice= 3 countries - 50%= 4 countries - 25%= 5 countries - 12%

  14. Surveys showthatOpt-out will depend on a verysubjectivedecisionbyweighingfeelings of uncertaintyagainstoptimistictestingandrisk-takingThe problem will bethetime factor: it will takelongbeforeuserscantakedecisions on a well-foundedevaluation of factsandownexperience. This will remain a problemforsome time.

  15. V. Future Improvement by way of the Revision Clause of Art. 87?

  16. Art. 87 UPC RevisionAfter seven years and after a broad consultation with the users shall be carried out… on the functioning, efficiency and cost-effectiveness of the Court, and on the trust and confidence of users of the patent system in the quality of the Court's decisions..

  17. My CeterumCenseoThe severe mistake which the EU Commission (and the EU Council) made was the refusal to include an unlimited option for EP patentsto either use the UPC or the national courts

  18. It would have avoided a lot of trouble- it would have allowed for a full EU integration of the Patent Package by way of a EU Regulation comparable to the Community trademark system

  19. - it would have rendered the complicated opt-out/opt-in system superfluous, since all 500.000 to 600.000 earlier filed EP patents would have remained in the “basket” as a permanent reserve for litigation

  20. - it would have avoided the serious and also unpredictable risk that in particular large companies will opt-out the majority of their patents so that the UPC will receive a very low number of cases in the first seven years

  21. - it would have allowed SMEs to continue filing and enforcing EP patents in the future instead of going back to national offices for cost reasons

  22. THANK YOU FOR YOUR ATTENTION

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