Conference preview: Judge Hacon on UPC and Brexit

Do you think the UPC will be operational in December 2017, as has been predicted?

No, I think it is almost certain that the Unified Patent Court (UPC) will not be operational in December. The UK and Germany have yet to ratify. The UK government last November signalled that it intended to press ahead with ratification despite the EU membership referendum result. But then came the announcement of the general election and the procedure for ratification was not completed when the last parliament ended. The Scottish parliament also has to approve.

I do not think that UK ratification is going to happen until the summer at the earliest, or alternatively in the autumn. I can’t comment about German ratification, but I don’t think it is possible for the UPC to start until well into next year at the earliest.

How confident are you in the UPC judicial system being successful?

I am confident that the judicial system will be successful. As part of the preparation for the UPC, like other judges I have been taking part in several mock trials carried out under the UPC Agreement and its regulations.

I have been very impressed by how a panel of judges—I’m often with German, French, Dutch and Italian judges—wherever they happen to be from, is able to reach a consensus. We do disagree about the law or procedure but we have always been able to come to an agreement. That leaves me optimistic about how well the judicial system will work.

What will be the challenges for its successful operation?

The biggest challenge will be to earn the confidence of litigants. They need to know and expect that the UPC will give sound, well-reasoned judgments. Litigants will also need to have reasonable expectations that the system is predictable.

To begin with, it’s possible that one local division, for example, may decide things one way, and a different local division might decide things another way. Such divergence, if it happens, won’t be helpful.

The early judgments of the Appeal Court in Luxembourg are going to be essential in bringing consistency and predictability. I’m confident that will happen, although it might take a little time.

What impact will the UPC have on other patent litigation in Europe?

As the amount of litigation before the UPC increases, inevitably there will be some decrease in patent cases brought before the national courts. I don’t expect litigation before the UPC immediately to be very high, so the impact may be quite slow. Over time there will be a change, but not immediately.

How do you see your involvement in this process?

Like all the other English patent judges, I have applied to become a UPC judge. Should any of us be accepted, we expect to work at the UPC, possibly on an ad hoc basis, possibly on a monthly basis, however it happens.

To begin with, the UPC won’t know how much work will be before it. It may be that national judges will be called on as and when they are required and then to go back to their national job, but this is just a guess. At the moment, we don’t know how it is going to work.

How will the UPC affect British judges?

British judges who hear patent cases are looking forward to spending time in the UPC if the UK remains part of the UPC Agreement.

How will Brexit affect the UPC?

The short and accurate answer to that is: nobody knows. Certainly there are potential difficulties in the UK remaining part of the UPC Agreement after Brexit, mostly to do with the jurisdiction of the Court of Justice of the European Union. On the other hand, a lot of distinguished legal minds have seen ways the UK could remain part of the UPC Agreement after Brexit.

That is a political decision for the UK government, on one hand, and the other governments and institutions of the EU on the other. We will have to wait and see what they decide.

To find out more about the conference, visit www.unitarypatentsystem.eu