http://ipkitten.blogspot.com/2024/04/guestpost-does-judicial-composition-of.html
| The UPC Court of Appeal in Luxembourg |
Amidst the humblebrags and #blessed postings, LinkedIn these days is also full of posts on stats from the Unified Patent Court (UPC). As Merpel was wading through the usual analysis, she stumbled across a novel topic in a post from her Parisian Kat friend, Lionel Martin (August-Debouzy) posing the question as to whether the Court of Appeal’s panel composition is in breach of the European Convention of Human Rights (ECHR) – and whether anyone would care enough to challenge it.
Over to Lionel:
“Since its opening this June 1, 2023, very few cases have reached the appeal level, and even fewer have been subject to an appeal decision (less than 10 published by the Unified Patent Court so far as of today).
Other than the appeal of the first successful preliminary injunction (NanoString Technologies and others v 10x Genomics and others, ref: APL_576355/2023 UPC_CoA_335/2023 – where the PI was overturned), the UPC Court of Appeal has mainly been dealing with procedural questions on the legal interpretation of the Rules of Procedure and UPC Agreement (UPCA). As a result, the Court of Appeal took the position that for those appeals, the Court of Appeal’s panel would be composed of only 3 Legally Qualified Judges (LQJs).
However, this approach seems at odds with the principle enshrined in Art. 9(1) UPCA. Article 9(1) provides: “Any panel of the Court of Appeal shall sit in a multinational composition of five judges.” That composition is 3 LQJs and 2 Technically Qualified Judges (TQJs). The only exception to this principle is the one of Art.9(2) concerning decisions of the European Patent Office in carrying out the tasks referred to in Article 9 of Regulation (EU) No 1257/2012. In those cases, the panel is 3 LQJs. None of the pending appeals before the UPC appears to deal with this exception, and yet most of the appeals have not added 2 TQJs to the 3 LQJs to obtain a 5-judge panel under Article 9(1).
This question of the composition of Court of Appeal panels does not seem to have been bluntly disregarded by the UPC. Indeed a particular set of appellate decisions in the Panasonic against OPPO campaign acknowledged the issues (3 decisions of 18, 19, and 20 December 2023, respectively UPC_CoA_472/2023, App_594327/2023, UPC_CoA_476/2023, App_594339/2023, UPC_CoA_478/2023, App_594342/2023). Here, the Court of Appeal attempts to justify the lack of TQJs for cost effectiveness and efficiency reasons considering the question at stake (change of language from German to the English language of the patent).
| Lionel Martin |
But a corresponding analysis by August-Debouzy of patent litigation and public law case law appears to indicate that stepping away from the UPCA principle of 5-judge panel, including 2 TQJs, would contravene the principle of a court instituted by law protected under article 6 of the European Convention of Human Rights.
In particular, according to ECHR caselaw, the principle of efficiency referred to on the above-mentioned UPC decisions does not seem to permit the reduction to the number of judges within a panel. Notably, there is no express provision in the UPCA to allow the Court of Appeal to depart from the rule. Up to this date, this Guest Kat has not been aware of any case where the respective parties complained about the lack of TQJs in the appeal. Should one party decide to challenge the 3 LQJ practice, the Court of Appeal’s practice may engage the ECHR and consequences for breach.
Why does this matter?
This breach of the principle of the 5-judge panels has at least two consequences.
The first type of consequence is more philosophical. This practice of the Court of Appeal is regrettable since the inclusion of technically qualified judges in the panels of the Court of Appeal was not intended to be limited to only providing the court with technical skills. In various hearings since the start of the UPC, the UPC could have notably heard from TQJs on their views on purely legal questions. The exclusion of TQJs therefore gives rise to a suspicion that the legally qualified judges only see technically qualified judges as technical experts that the Court is free to consult or not.
| Three legally qualified British short hair judges in the UPC….sadly only a fantasy post Brexit (thanks to Dall-E) |
The second consequence is the setting of caselaw. Since this court is just starting, several procedural questions are still open and are waiting for the Court of Appeal to provide users with more clarity. Having more views and opinions on important issues at the crucial start of the Court, is surely better and makes the system more robust. Thus why, in some national courts, for important issues courts will sit in a larger panel composition.
A significant corresponding example is the current debate as to the public access to the register. Most of the requests for the public access to the register are stayed pending the appeal by Ocado on the Nordic-Baltic’s ruling that granted access to the case to a member of the public. Yet this appeal was heard on March 12, 2024 by a panel of 3 LQJs that will set the standard for all cases, while excluding TQJs who may also have had their view on it. During the hearing, the 2nd panel of the Court of Appeal nevertheless invited the speakers to comment on this lack of TQJs for this case. We await for the corresponding written ruling on this.
Predictability is usually the criterion sought by court users when deciding whether to pursue litigation in the UPC over a national court, during this transitional period. Alas, a little flaw in panel composition may require us and court users to bide our time a bit more…”
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