Mandatory representation

Before the UPC, parties must be represented (A48(1) and (2) UPCA and R8.1 RoP UPC). The only exceptions are actions against decisions of the EPO concerning unitary patents (A48(7) UPCA), together with a few formalities such as the opt-out (R5 RoP UPC).

A natural person cannot represent himself or herself, even if he or she holds the required qualifications (UPC, Court of Appeal, 11 Feb. 2025, Suinno v. Microsoft, UPC_CoA_563/2024, point 20).

Who may represent a party?

Representation may be provided by (A48 UPCA):

  • a lawyer authorised to practise before a court of a Contracting Member State (paragraph 1); the Rules of Procedure refer more broadly to lawyers authorised to practise in a Member State of the European Union within the meaning of Directive 98/5/EC, and require a certificate to that effect to be lodged (R286.1 RoP UPC);
  • a European patent attorney entitled to act before the EPO (Article 134 EPC) who has appropriate qualifications, such as a European Patent Litigation Certificate (paragraph 2). The accepted qualifications are laid down by the Administrative Committee, and the Registrar keeps the list of entitled European patent attorneys (paragraph 3 and R286.2 RoP UPC).

It is worth noting that there is no nationality or residence requirement for the European patent attorney: a European patent attorney of Turkish nationality (Turkey being a party to the EPC) may perfectly well represent a party before the UPC… which is not a Turkish court. Strange, isn’t it?

Representatives may be assisted by patent attorneys, who may be allowed to speak at hearings at the discretion of the Court and under the responsibility of the representative (A48(4) UPCA and R292 RoP UPC).

Independence of the representative

The representative must be sufficiently distant from the party it represents. The Court of Appeal infers from this that a legal person cannot be represented by its legal representative, nor by any person holding substantial administrative or management powers within it, whether through executive functions or a significant shareholding, even if that person is otherwise qualified within the meaning of Article 48 (UPC, Court of Appeal, 11 Feb. 2025, Suinno v. Microsoft, UPC_CoA_563/2024, headnote and points 21 and 22). In that case, the European patent attorney was also the managing director and main shareholder of the company he represented (same decision, points 45 to 47): a lot of hats for a single representative.

On the other hand, merely being an employee of the party does not preclude independence: the employed lawyer or patent attorney simply has to act before the Court as an independent counsel, regardless of personal interests (same decision, headnote, and Article 2.4.1 of the Code of Conduct for representatives).

Rights and duties

Representatives enjoy the rights and immunities necessary for the independent exercise of their duties, in particular the privilege covering their communications with the client (A48(5) UPCA). This privilege covers lawyers and patent attorneys alike (including employees and European patent attorneys), their work product and their internal communications, unless the client expressly waives it (R287 RoP UPC); communications with third parties for the purpose of litigation are also protected (R288 RoP UPC).

In return, the representative must not misrepresent cases or facts before the Court, either knowingly or with good reason to know (A48(6) UPCA and R284 RoP UPC). He or she must strictly comply with the Code of Conduct adopted by the Administrative Committee (R290.2 RoP UPC).

Failing that, the Court may exclude the representative from the proceedings, which are then stayed until the party appoints another representative (R291 RoP UPC). Admittedly, the sanction is hardly severe for the representative… but it can be for the client: an omission in the presentation of the facts can bring down a measure obtained ex parte (see “Saisie and preservation of evidence”; UPC, Court of Appeal, 16 March 2026, Ecovacs v. Roborock, UPC_CoA_3/2026).

Change of representative

A change of representative takes effect when the Registry receives notification of the new representative; until then, the former representative remains responsible for the conduct of the proceedings and for communications with the Court (R293 RoP UPC).