UPC: busy schedule is ‘deliberately ambitious’
Court’s architects say packed schedule includes potential for moving start date | Concerns over case management system remain | UPC Committee is primed to iron out problems.
The Unified Patent Court (UPC) is scheduled to open its doors and begin accepting and processing cases on April 1 2023, after its committee unveiled a timetable that lawyers have described as “ambitious”.
The preparatory UPC committee issued the announcement confirming these dates on Friday, October 7, with a detailed roadmap of the implementation framework.
The deposit of the UPC ratification instrument by Germany will trigger the sunrise period, which is scheduled for January 1, and the entry into force of the UPC is set to begin three months later.
The UPC committee confirmed that a few judicial positions remain to be filled and that preparations are underway to create a reserve list of judges. For these reasons, plans have been set in motion for “a targeted and a general call for judicial applications”, it added.
During the upcoming sunrise period, IP lawyers will need to begin and complete an opt-out process via a case management system if their clients wish not to take part in the new system. It will also see the election of UPC presidents.
A tight, frantic schedule?
Commenting on the roadmap, Darren Smyth, partner at EIP, noted that the agenda was jam-packed given the amount that still needed to be completed.
“The timetable is pretty ambitious, and it is stated that it could be subject to further change,” he said.
“A further round of judicial recruitment is planned following the initial announcement of judges already appointed, and the schedule proposed for this is tight. The sunrise period is likely to be frantic, with a short period of three months for a large number of opt-outs to potentially be filed.”
Smyth also noted the UPC system has been subject to problematic issues, which could lead to setbacks.
“There seem to be difficulties obtaining and implementing the authentication and electronic signature system that is required for UPC representatives to use the case management system. This needs to be sorted fairly soon,” he urged.
Also commenting, Nicholas Fox, partner at Finnegan, said: “Given that it is likely that the court will need to hit the ground running, it is essential that everything is in fully working order on day one. That means all of the UPC road map must be implemented before the court opens.
“Given the repeated delays in getting the court open, postponing the opening date yet again would seriously damage the court’s reputation.
“I am sure the preparatory committee is well aware of that and that they would not have published this road map unless they were confident that the April 1 opening date could be guaranteed.”
No more roadblocks
Kevin M ooney, partner at Simmons & Simmons, and chairman of the Drafting Committee for the UPC Rules of Procedure agreed that it was a heavy agenda for early 2023.
“The timetable is ambitious, but it is deliberately so. Everybody is working very hard to meet this deadline,” he told WIPR, adding that “the days of serious roadblocks are gone”.
However, he conceded that it could be subject to last-minute changes.
“While I don’t think anything really really serious could happen that could derail the project, that timetable may slip for good, practical reasons. That’s why there is some wording that warns of the possibility. So there may be changes; we may lose that first April date.”
But Mooney insisted that judicial appointments were unlikely to pose a significant obstacle or stall the deadline.
“The first tranche of judges have received offers. And I think there were only one or two replacements as a result of that. What is now contemplated is a further round of recruitment, in addition to the first tranche of judges. So I don't think that's going to create a real delay at all, because most of the judges that are needed on April 1, with one or two exceptions, have been appointed.”
Systems should cope
He also challenged the suggestion that the sunrise period would be a “frantic” one.
“It is up to each patent owner to lodge an opt-out, provided they follow the procedure: the opt-out is automatic; the recording of the opt-out is automatic; and the opt-out automatically comes into effect on the first of April.
“If the procedures are followed, the whole process should be automatic, and therefore, the numbers are irrelevant. It could be 20,000, or 200,000, but the system should be able to cope with it.”
Acknowledging the concerns over the UPC technical systems, he said. “The IT team in Luxembourg will be publishing guidance on authentication and access to the CMS very shortly.”
A slow burn needed
Adding that while there were bound to be initial problems, Mooney argued that these should “hopefully be minor”.
“I hope the court gets off to a slow start because it will need time to iron out inevitable detail difficulties. But if the court is swamped with a number of cases from the beginning, I don't think that's a very desirable situation.”
EIP’s Smyth also forecast that activity will likely slow when the court actually opens. “People will be aiming to have all their opt-outs filed by then. I would expect that there will be some litigation cases filed very early on,” he said.
“While some will have waited for the UPC to open to start a case, and a number of patentees and litigators will be keen to be early users of the system, the overall number of litigation cases will probably not be huge.”
However, Fox anticipates a busier first day. “I expect there will be a flurry of litigation initiated on day one when the court opens. Certainly, there are patentees and litigators who are itching to start using the new court,” he said.
“What happens after that will really depend upon whether or not the new court creates new incentives for bringing patent litigation, and how much litigation the court can attract to be transferred from other forums, particularly Germany, which is the busiest jurisdiction by far.
“Certainly, the UPC procedures do much to make it an attractive forum for enforcing rights.”
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