Europe’s first federal court could turn into a ‘mugger’s charter’ with litigants forum-shopping for the most advantageous tier and language to hear their case, the conference heard.
The Unified Patent Court, with divisions in Paris, Munich and London will come into being when, of the 25 participating states, 13 including Germany and the UK ratify the protocol, Roger Wyand QC of Hogarth Chambers told a session entitled ‘A mugger’s charter – or a level playing field?’ He noted that the UK government has this year signed a lease on premises for the UK-based divisions. ‘What many wonder is if there is a break clause in the event of the UK opting out of the EU,’ he said. This would automatically entail an opt-out of the court.
Proposed rules and procedures for the court are now in their 18th draft, which is expected to be the final one, German federal patent judge Klaus Grabinski said. However, he added that several questions remain open about how the court will operate.
He pointed to a loophole allowing litigants to bypass the initial tier by claiming infringement in a small jurisdiction such as Malta which is unlikely to host a local division.
Another speaker, Jozsef Talas, of Hungarian firm Sar & Partners, predicted extensive forum-shopping between tiers and languages. He said claimants ‘will choose the language they want to use or misuse’.
Grabinski said that the court was committed to conducting most oral hearings in one day after preliminary examination of written evidence. He stressed that this ‘front-loading procedure’ would require full facts to be submitted. ‘These are not going to be skeleton arguments,’ he said. However it was still unclear whether cross-examination rules would allow continental-style questioning by the judge or follow common-law procedure.
Former Court of Appeal judge Sir Robin Jacob cast doubt on the ambition for the court to be self-funding. ‘I doubt this will happen in my lifetime,’ he said. However, he added that the court had the potential to become ‘the best patent court in the world, which is not saying a lot’.