On 2nd April 2015 we saw, for the first time, an approximation of the Unified Patent Court (UPC) in action during an excellent live-from-Paris webinarized event set up by a plethora of French IP institutions. Indeed, the sheer number of acronymical institutions (thirteen!) representing the interests of the French IP industry was almost as impressive as the high quality of the broadcast itself.
The Mock trial was in two parts and considered an in camera ex parte request to preserve evidence against a French defendant followed by a separate inter partes hearing to consider an application for provisional measures (interim injunction with delivery up of infringing products). The fictional European Patent in suit had been upheld following EPO opposition and related to composite abrasive sheets: effectively posh sandpaper.
IPCopy wonders if the choice of date was auspicious, given that 2nd April is the feast day of Saint Mary of Egypt, the patron saint of chastity, deliverance from carnal temptations and, therefore, we presume representatives of august EU institutions. At least the judges selected for the four person panel (Paul Maier, Colin Birss, Sophie Canas and Kim Finnilä) did not disappoint in their measured impartiality, rendering their verdicts with due consideration for the facts presented to them. The verdicts were generally in line with the consensus of the audience when polled at the end of the event. Nevertheless, the main benefit in running dress rehearsals like this is in identifying interesting aspects of the system.
The first aspect related to the interaction between an Article 60 UPC order to preserve evidence and inspect premises and the relevant national French law, saisie contrafaçon. Whilst the Court attempted to issue an order that complied with national requirements in the first ex parte hearing, there was some debate and counterargument in the latter provisional measures hearing from the defendant’s team that suggested the operation of the order may not have been in accordance with the national laws. In so doing, the defendant raised the prospect that the clear evidence of infringement secured during the inspection could have been struck out as ineligible. From IPCopy’s perspective this highlighted that the relationship between national remedies, which can vary in application across the EU, and the UPC should be considered in greater detail and clear guidance issued on how such remedies should be carried out.
A second aspect of the proceedings related to the nature of the arguments presented by the respective parties. Both the claimant’s and the defendant’s representatives took their well deserved opportunity to grand stand before a packed auditorium of their peers and an internet audience of, at least at one point, in excess of a thousand subscribers – described affectionately by Judge Birss as little birds peeking through the window. However, this Court was having none of it and clearly wanted to keep the focus on the technical arguments. The proceedings bore more than passing resemblance to an EPO Technical Board of Appeal hearing, with a gruff Chairman seeking to restrain verbose representatives and get them to the point as succinctly as possible. Perhaps it is unfair to judge the proceedings too harshly on this point, the organisers had to keep to time and please their audience as well as dispense some form of justice.
In general, though, IPCopy thinks event was informative and thought provoking. A full trial is scheduled for early autumn and should be well worth watching. The UPC Rules, now on the 17th draft, seem operable and the Court did not appear to be out of its depth. To this viewer it looked like the whole project might just work, of course whether it will work well on a budget that the majority of users can afford is another question entirely.