First Instance
The Central Division
Location
The UPC Central Division is spread across three distinct geographical sites (Article 7.2 of the Agreement on a Unified Patent Court):
- Paris (which is the seat of the Central Division),
- London section (which will likely be replaced by another site due to Brexit, most probably Milan),
- Munich section.
Yes, I know… it starts well when a central division is not centralized 🙂
Composition
The Central Division sits in a multinational panel of 3 judges (Article 8.1 of the Agreement on a Unified Patent Court), i.e. (Article 8.6 of the Agreement on a Unified Patent Court):
- 2 legally qualified judges of two different nationalities;
- 1 technically qualified judge in the relevant field.
If the case concerns an action against the EPO in the performance of its functions (Article 8.6 together with Article 32.1.i of the Agreement on a Unified Patent Court), 3 legally qualified judges sit.
The parties may agree that a single legally qualified judge decides their case (Article 8.7 of the Agreement on a Unified Patent Court).
Local Divisions
Introduction
In addition, member states may establish on their territory (Articles 7.3 and 7.4 of the Agreement on a Unified Patent Court) from 1 to 4 local division(s) depending on the number of cases handled per year.
Location
At this stage, the known local divisions are:
- Austria (Vienna)
- Belgium (Brussels)
- Denmark (Copenhagen)
- France (Paris)
- Finland (?)
- Germany (Düsseldorf, Hamburg, Mannheim, Munich)
- Ireland (?)
- Italy (Milan)
- Netherlands (The Hague)
- United Kingdom (London).
Composition
The local divisions sit in a multinational panel of 3 judges (Article 8.1 of the Agreement on a Unified Patent Court):
- if fewer than 50 cases are handled per year (on average) (Article 8.2 of the Agreement on a Unified Patent Court)
- 1 legally qualified judge who is a national of the Contracting Member State hosting the local division;
- 2 legally qualified judges who are not nationals of the Contracting Member State hosting the local division (there is a pool of « flying » judges);
- if more than 50 cases are handled per year (on average) (Article 8.3 of the Agreement on a Unified Patent Court)
- 2 legally qualified judges who are nationals of the Contracting Member State hosting the local division;
- 1 legally qualified judge who is not a national of the Contracting Member State hosting the local division (there is a pool of « flying » judges – this judge may be permanently assigned to that division).
At the request of a party (Article 8.5 of the Agreement on a Unified Patent Court) or if a counterclaim for revocation is filed (Article 33.3.a of the Agreement on a Unified Patent Court), a technically qualified judge in the relevant technical field may be added to the panel.
The request for the assignment of a technical judge must be submitted as early as possible in the proceedings (Rule 33.2 of the Rules of Procedure) and this request must specify the relevant technical field (Rule 33.1 of the Rules of Procedure).
This request will be granted if it is submitted before the close of the written procedure or, if submitted thereafter, if it is justified in light of a change in circumstances, such as new submissions (Rule 33.2 of the Rules of Procedure).
The assignment of a technical judge may also be requested at any time by the judge-rapporteur (Rule 34.1 of the Rules of Procedure).
The parties may agree that a single legally qualified judge shall decide their case (Article 8.7 of the Agreement on a Unified Patent Court).
Regional divisions
Introduction
Several Contracting Member States may agree to set up a regional division together (Article 7.5 of the Agreement on a Unified Patent Court).
Location
The regional division may hold hearings in several locations.
At this stage, the known regional divisions are:
- Estonia, Latvia, Lithuania, Sweden (Stockholm).
Composition
The regional divisions sit in a panel of 3 multinational judges (Articles 8.1 and 8.4 of the Agreement on the Unified Patent Court):
- 2 legally qualified judges who are nationals of the member states of the regional division;
- 1 legally qualified judge who is not a national of the member states of the regional division (there is a pool of « flying » judges).
At the request of a party (Article 8.5 of the Agreement on the Unified Patent Court) or if a counterclaim for revocation is filed (Article 33.3.a of the Agreement on the Unified Patent Court), an additional technically qualified judge in the relevant technical field may be added to the panel.
The request for the assignment of a technical judge must be submitted as early as possible in the proceedings (Rule 33.2 of the Rules of Procedure) and this request must specify the relevant technical field (Rule 33.1 of the Rules of Procedure).
This request is granted if the request is submitted before the close of the written procedure or, if submitted after the close, it is justified in light of a change in circumstances such as new submissions (Rule 33.2 of the Rules of Procedure).
The assignment of a technical judge may also be requested at any time by the judge-rapporteur (Rule 34.1 of the Rules of Procedure).
The parties may decide that a single legally qualified judge shall decide their case (Article 8.7 of the Agreement on the Unified Patent Court).
Court of Appeal
Introduction
The Court of Appeal hears appeals relating to the Court of First Instance (whether a central, local, or regional division).
Location
The Court of Appeal is located in Luxembourg (Article 9.4 of the Agreement on the Unified Patent Court).
Composition
The Court of Appeal sits in a panel of 5 multinational judges (Article 9.1 of the Agreement on the Unified Patent Court):
- 3 legally qualified judges from 3 different member states
- 2 technically qualified judges.
The President shall then be one of the legally qualified judges (Article 9.2 of the Agreement on the Unified Patent Court).
Arbitration and Mediation Centre
Introduction
To facilitate the resolution of disputes and to reduce costs for the parties, the Agreement on the Unified Patent Court establishes an Arbitration and Mediation Centre.
It should be noted, however, that it is not possible to revoke or limit a patent before this mediation and arbitration center (Article 35.2 of the Agreement on the Unified Patent Court).
Location
The seats of this center are located (Article 35.1 of the Agreement on a Unified Patent Court):
- in Ljubljana
- in Lisbon.
Operation
The mediation and arbitration center establishes the rules of operation, the methods for designating arbitrators and mediators, etc.
It should be noted, however, that it is not possible to revoke or limit a patent before this mediation and arbitration center (Articles 35.3 and 35.4 of the Agreement on a Unified Patent Court).
Absence of a Supreme Court
It should be noted that in the organization presented above, there is no supreme court or « legal » review body (such as the Cour de Cassation, for example).
Link with the Court of Justice of the European Union (CJEU)
The Court of Justice of the European Union is not, in itself, part of the UPC.
Nevertheless, it should be mentioned as it may interact with it (only in relation to questions of European Union law (e.g., Biotech) – and not in relation to questions of procedure, patentability, infringement, etc.).
Indeed, within the framework of preliminary rulings (Rule 266 of the Rules of Procedure), and if the question raised appears necessary for the resolution of the dispute:
- the court of first instance may refer this question to the CJEU;
- the court of appeal must refer this question to the CJEU.
A stay may be ordered, but in any event, no judgment may be rendered before the CJEU’s response (Rule 266(5) of the Rules of Procedure).