Report of the Litigation Committee
The Litigation Committee arranged a 1½ day in person meeting on 25 to 26 April 2024 in connection with the 97th Council meeting in Sofia, Bulgaria.
Several new members had joined the Committee. We started off by having a round of introduction of each Committee Member. This was followed by a review of the terms of reference of the Committee, which was done with reference to overlaps and borders with the other fifteen epi committees for clarifying the position of the Litigation Committee. We also discussed the role and function of the Members, Executive Group, Sub-committees, Legal Advisor and Committee Support.
Then it was time for a [slightly competitive] team building exercise. The members were split into five teams. The exercise also included an evaluation of the communication and cooperation within each team during the exercise, which was analysed in an open discussion.
For the term 2023-2026 we established three Sub-committees:
- (i) UPC Sub-committee / Chair Andrea Perronace (SM);
- (ii) National Litigation Matters Sub-committee / Chair Dinah Elisabeth Hesselink (NL); and
- (iii) EU and International Litigation Matters Sub-committee / Chair Stoyan Radkov (GB).
For focusing the work product of the Committee, we also adopted terms of reference for the Executive Group and the Sub-committees.
The Sub-committees then had the opportunity to break out for discussing work topics and setting a date for their first online meetings.
Our first substantive topic reviewed an EPO project on “Facilitating access to dispute settlement advice for patent-holding micro-entities” where epi and EPLAW had been invited as parties. We discussed certain items of this project (financing, responsibility of the three parties vis-à-vis project eligibility, distribution of funds and monitoring). A brief report of this discussion was forwarded to the Presidium meeting next morning. The future of the project is still open.
Our second topic was an interesting case-law review concerning a case where a revocation action before the UPC was filed at the same time as an opposition before the EPO. Both actions were initiated in June 2023. A final hearing before the UPC will be held in June 2024. After some discussion between the parties and the EPO, an oral hearing is set before the EPO in October 2024.
There have been two similar cases before the UPC. One case before the Munich Central Division - UPC_CFI_80/2023; the other case before the Paris Central Division - UPC_CFI_263/2023. In both cases stay was not granted before the UPC. However, the latter case has been appealed and a decision is expected from the CoA soon.
This review served as an introduction to the second part of the Council Pre-seminar on Friday 26 April 2024.
UPC related education
There have been several general seminars and webinars on the UPC. The plan is now to start with some advanced level training, the first suggested topic being the interaction between the EPO opposition system and the UPC revocation actions. Another potential topic is “pre-litigation” matters, such as warning letters and protective letters. These were topics for the Pre-seminar.
This work is undertaken by the Inter-Committee Working Group (PEC, EPPC, Litigation Committee).
UPC Administrative Committee (AC) and the UPC Registrar & IT Team
We have continued with our fruitful cooperation with the other Observer organisations (BusinessEurope, EPLAW, EPLIT) in preparing for the now regular meetings with the UPC AC and the UPC Registrar & IT Team.
In the last two meetings with the UPC AC we have discussed the potential accession of IE (now delayed) and RO to the UPCA. The establishment of the Patent Mediation and Arbitration Centre (PMAC) is finally underway. The Observers received draft rules on mediation and arbitration for confidential review. Judges have been appointed to the Milan Central Division, which will open on 26 June 2024. The next 12th meeting is scheduled for 19 July 2024.
The case load of the UPC is now updated monthly under the “News” section of the UPC website. The case load is steadily increasing.
The epi preparations for the UPC AC meetings are under the auspices of the epi UPC Advisory Group consisting of the President, the Executive Group of the Litigation Committee, the Chair of the UPC Sub-Committee, and the Chairs of the EPPC and the OCC.
The meetings with the UPC Registrar & IT Team are also progressing well. The Court notification system is not very clear, not even for the Judges. This has now been discussed in detail and a general review of the system has been launched. The case numbering system will also be clarified. Decisions and orders will automatically be transferred from the CMS to the website, which also has been provided with an improved search mask. Naming of the parties has been confusing, e.g. claimant and defendant may vary according to which procedure is initiated in a particular case. This is now also under review. The next 12th meeting is scheduled for 17 June 2024.
The Observers have received many thanks for this cooperation (initiated by the epi) also at the UPC AC meetings.
The epi preparations for the meetings with the UPC Registrar & IT Team are under the auspices of the Executive Group of the Litigation Committee, the Chair and some Members of the OCC and the Chair of the EPPC.
There is also a new project on UPC Business Intelligence with the UPC Registrar & IT Team aiming to enable taking advanced decisions based on dedicated reporting tools, as well as generating various statistics. The Observers are also involved in this project with a 2nd meeting scheduled for 29 May 2024.
