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Weekly take: UPC should seize chance to address impartiality worries

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The UPC is on the road to becoming a reality, but before it starts it must make sure everyone has faith in its impartiality

When I was at primary school (longer ago than I care to remember) my teacher always used to read us books by the same author.

I had no complaints. The books were funny and engaging.

It was only after leaving school that I twigged a glaring (albeit innocent in the grand scheme of things) conflict of interest: said author was the teacher’s husband.

We were never told of this heinous bias at the time, and although I won’t be retrospectively demanding other authors get a fair crack at the whip, it does, looking back, amuse me.

How many other authors were denied an airing of their works? Was the teacher’s view clouded and was she really reading the best books available? How many of us wide-eyed pupils encouraged their parents to buy the author’s books?

Maybe our parents knew of the relationship between author and teacher all along. Nevertheless, a little transparency at the start could have taken away any whisperings of story time corruption.

I joke, of course, but conflicts of interests can have serious consequences if they are not taken seriously and addressed head on. In the patent world, this has never been more pertinent as it is today.

UPC clarity

With the news that the Unified Patent Court (UPC) is to finally get underway on June 1, it’s time for the court to show it is taking every step to ensure transparency in the courtroom.

A brief refresher for those not in the know.

The UPC has been engulfed in some controversy over the selection of part-time technically qualified judges.

Some – but not all – of those judges have day jobs at law firms, attorney firms and businesses. They will continue to practise in those roles while sitting at the UPC.

It doesn’t take a genius to imagine a scenario in which one of those judges encounters a patent, business or rival law firm that they have an interest in.

It would be easy to suggest this would be solved by a mere declaration of interest or judges recusing themselves from cases (if only that happened during story time at primary school, eh?).

In cases where this doesn’t happen there are bound to be murmurings of a conflict of interest. Or at the very least, one side in a dispute will try to find something.

Some of the technically qualified judges will have worked at multiple firms and with multiple clients stretching back many years.

Seasoned lawyers will not find it hard to look back through a technical judge’s long career, raise a potential conflict and claim that their decision may be clouded.

Code required

In November, Klaus Grabinski, president of the UPC Court of Appeal, told Managing IP that the judges will consider whether to include guidance on potential conflicts in a judicial code of conduct.

“We could be more precise in drawing the borderlines with regard to conflicts of interest for part-time judges,” he suggested.

The UPC chief judge did add, however, that the use of such judges was a common feature in some UPC member states. A sign perhaps that in fact he sees no issue.

Of course, the UPC Agreement (UPCA) is now in force following Germany’s formal ratification last week, and the countdown to the UPC becoming a reality has begun.

But so far, guidance is lacking.

We are not asking for pages and pages of detailed guidelines. A simple authoritative stance from the UPC is needed.

If anything, this could merely be to calm the hum of panic and discontent in some quarters.

Some counsel previously told Managing IP they fear the early years of the court will be marked by challenges to technical judges’ impartiality if there is no clarity on this issue.

If that were to transpire it would be an unwelcome distraction in what should be an exciting new era for patent litigation.

So, while I won’t be mounting any challenges to my old teacher’s impartiality, UPC litigants are unlikely to be so forgiving.

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Kaushal Choonee is a patent attorney at Elekta in the UK