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Weekly take: UPC shouldn’t rule out further delays

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The UPC start date has been delayed by two more months, so now is the time to get things right – however long it takes

Typically, I was off work when the news came through that the expected start date for the Unified Patent Court had been delayed by two months.

In fact, I was taking my son to his first trip to the dentist. It was fitting given that the UPC, specifically its content management system (CMS), has been beset by teething issues.

The fact that counsel have been given an extra two months, until June, to get to grips with the CMS did not come as a surprise.

In fact, I’m amazed the decision to delay didn’t come sooner.

In almost every conversation we’ve had with those who’ve tested the system, they’ve reported problems. Most of the troubles regarded a struggle to find a provider of strong authentication services, which is a requirement to use the system.

I can see why the organisers did not want to delay things further.

The UPC, in some shape or form, has been in the pipeline for almost 40 years and a delay (there have been a few already) so close to launch may have been viewed with some amusement.

But launching the system only to have it consumed by IT chaos would have been far worse than delaying it, particularly as the UPC start date is an arbitrary deadline.

The decision may have come late in the day, and when many counsel were beginning to panic, but it was the right call.

Now, work must start on ensuring everything is up to speed and that those IT woes do not continue.

There will likely be some minor technical troubles, of course, as there are when any new system goes live, but full-on chaos must be avoided.

Let’s talk

Improving communication is a big factor in ensuring a smooth start.

Sources told Managing IP last week that information from UPC officials and Net Service – the IT company that developed the CMS – has been lacking.

Clearly, if the UPC is to be a success then this must change.

We are entering unprecedented territory. When deciding whether to opt their patents in or out, counsel will need to be absolutely sure about any ramifications and, most importantly, how to go about the process.

A forum for users to air their concerns with both UPC officials and IT gurus has been floated. This seems entirely sensible to me.

So too does providing more information on which companies can provide strong authentication and their requirements for doing so – such as whether in-person checks are needed.

The strong authentication must be compliant with eIDAS (electronic identification and trust services), an EU regulation that defines the standards for electronic IDs and virtual signatures.

But it is still not clear which companies are able to provide these services and whether they would work for the CMS.

At the moment, the onus is on patent owners or their advisers to check which companies can provide this service.

In reality, this should be the least of their concerns. All they want is to access a safe, secure and easy-to-use CMS to begin the process of managing their portfolios for the change that’s coming.

There are other, more obvious tweaks that it would seem eminently sensible to make. The CMS, for example, doesn’t allow for multiple users to work on an opt-out, a setup that is in stark contrast to the way most law firms work.

No rush

These changes may take time, but luckily time is on everyone’s side (if two months is seen as being sufficient).

The UPC organisers have a flexible start date. There was no pressure to start the system in April and there is no pressure to start in June. Though, clearly to instil confidence in the system, it has to start at some point, and practitioners may be keen that this happens before the traditional summer slowdown.

Practitioners, UPC organisers and patent owners have been waiting for many decades for this to get off the ground. They can wait a bit longer if necessary.

After all, as England football fans will no doubt be saying (again) after the World Cup exit this weekend: we’ve waited 56 years, we can wait a bit longer to the UPC.

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