#3 UPC series: Judges of the court

This article is the third in a series analyzing the Unified Patent Court (“UPC”) and the provisions of the Agreement on a Unified Patent Court (“UPC Agreement”) of February 19, 2013 (the full text of the agreement is accessible here). This article focuses on the provisions of the UPC Agreement concerning the judges of the Unified Patent Court (Articles 15–19 UPC Agreement).

The Unified Patent Court (“UPC”) will be a court common to the contracting member states party to the UPC Agreement, and thus part of their judicial systems. It will have exclusive jurisdiction with respect to European patents with unitary effect (“Unitary Patents”), while with respect to traditional European patents, the court will be able to render one decision for all those countries where a European patent is registered, unless the patent has been “opted out” of the system by the patent rightsholder.

Once it became clear that the Unified Patent Court was going ahead, the question of how the judges deciding on European and Unitary Patents would be selected and appointed—and who those judges would be—quickly rose to the top of the UPC agenda.

Eligibility criteria for judges and the appointment procedure are described in Articles 15 and 16 of the UPC Agreement. As already reported in our previous article “The latest on the European Unified Patent Court,” the Administrative Committee (which leads preparations for the Unified Patent Court) appointed experienced intellectual property professionals to the body handling the appointment and training of judges of the court, its Advisory Committee.

Article 17 of the UPC Agreement sheds light on judicial independence and impartiality: this provision provides that the court, its judges, and the court registrar enjoy judicial independence and impartiality—thus, in the performance of their duties, the judges are not bound by any instructions.

To ensure compliance with such principles and values, aside from judicial functions at the national level, full-time UPC judges are not permitted to engage in any other occupation, unless an exception is granted by the Administrative Committee. On the other hand, part-time technically qualified judges may exercise other functions, provided there is no conflict of interest. In the event of a conflict of interest, the judge concerned may not take part in the proceedings.

As clarified in our previous article “UPC series: General and institutional provisions,” the Court of First Instance and the Court of Appeals will be composed of both legally qualified judges and technically qualified judges. The judges shall be nationals of a member state that is party to the UPC Agreement, meet the highest standards of skill and ability, have proven experience in the field of patent litigation, and have good command of at least one of the official languages of the European Patent Office.

Legally qualified judges shall possess the qualifications required for appointment to judicial office in a contracting member state, and technically qualified judges shall have university degrees and proven expertise in a field of technology, as well as proven knowledge of civil law and procedure relevant to patent litigation. Any panel of the UPC shall have a multinational composition.

Article 18 sets forth that the legally and technically qualified judges from the Court of First Instance form a pool. They are allocated to the relevant divisions based on their legal/technical expertise, linguistic skills, and experience.

The technically qualified judges are also available to the Court of Appeals.

Lastly, Article 19 closes Chapter III of the UPC Agreement: this specific provision concerns the judge training framework with facilities located in Budapest, and it establishes that said training framework will focus on, among other things, technical aspects of patent law and courses on civil procedure for technically qualified judges.

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