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Unified Patent Court, structure and judges  

September 21, 2023

As many of you already know, the new unitary patent system came into force on 1 June. On this date, the Unified Patent Court (UPC), a body composed of a Court of First Instance and a Court of Appeal, also came into operation. Its structure also includes a Mediation and Arbitration Centre to encourage amicable settlements.   

The UPC aims to resolve disputes between patent owners and third parties. To this end, it establishes a uniform, specialised and efficient framework for settling disputes such as those that have already begun to occur. This tribunal has jurisdiction for infringement and invalidity actions for classic European patents (unless an opt-out has been requested) and European patents with unitary effect.   

After three rounds of nominations and lengthy selection processes, the UPC is so far composed of 105 judges who will be responsible for the future judgments. Of these, 37 are legally qualified judges, while 68 are technically qualified judges. All of these professionals are nationals of the different contracting Member States and have experience practising in those countries. This was a prerequisite.   

The inclusion of technically qualified judges is one of the important novelties of the Unified Patent Court. As a requirement for them, among many others specified here, they must have a university degree and proven experience in a technical field, as well as knowledge of civil law and patent litigation procedures. The defined technical fields are chemistry and pharmacy, biotechnology, electricity, mechanical engineering and physics.   

Technical judges and the controversial recruitment process  

The selection process for the technical judges has not been free of controversy due to their professional backgrounds when it comes to forming part of the Court. After the first announcement of the first names that would form part of the team of judges in October 2022, many expressed their reservations about possible conflicts of interest for those who had previous links with intellectual property firms that could have potential activity before the UPC.  

In response to this controversy, in April 2023, the UPC published a code of conduct prohibiting the possibility of combining work at the Tribunal and IP firms or corporations, as well as the possibility of being a representative for such firms before the UPC. This led to several resignations among some of the nominated technical judges. For this latest recruitment phase at the beginning of August, where 21 new technical judges have joined, only examiners and technical judges were appointed from the patent offices and patent courts of the UPC states.  

Thus, so far, 44% of the technical judges have worked as judges or examiners in patent offices in their home countries. Forty-six per cent are patent attorneys in private practice, while 10 per cent come from corporate patent departments. This will not be definitive, as the Administrative Committee of the UPC also said that it would continue to interview other candidates, so the number of judges is likely to continue to increase. 

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