Rights of UK patent attorneys to Practise before the Unified Patent Court - CIPA/IPO Open Meeting
To his great pleasure, it fell to this moggy yesterday to attend the meeting organised by the IPO and CIPA at CIPA Hall to discuss the rights of representation by patent attorneys at the Unified Patent Court.
There now follows a digression of comparative zoology. The IPKat is not an Octopussy, and therefore he is able to contribute to the debate and tweet, or take notes, but cannot do both. Since he did the former (@EIP_Elements), he emerged with no further written record. He is also not an Elephant, and therefore suffers from imperfect recollection. Moreover, unlike a Chameleon, when he is sitting at the front of the room, he cannot see behind him, and therefore he was not always aware of who was speaking at any given time. For that reason, in the report that follows, he will not attempt to attribute specific comments to specific people.
Purely by chance, this outcome of necessity probably serves an admirable purpose of encouraging open speech, because it may well be that some of the attendees were expressing provisional opinions that they might not wish to see attributed to them with the finality of the written word.
The advertised lineup was as follows.
Chairman:
Roger Burt, President of CIPA
Speakers:
Neil Feinson, Director of International Policy, IPO.
Mr Justice Birss
Chris Mercer, Carpmaels & Ransford LLP
Vicky Salmon, IP Asset LLP
The upshot of the debate seems to this Kat to come down to the following.
Firstly, we need to concentrate on the wording of the UPC Agreement, not the Rules of Procedure, which are currently a bit of a mess around the subject of representation (and proof of entitlement to represent) and are making a complicated situation even more difficult. The current draft of the Rules of Procedure are not the final version and can and presumably will be changed. The Agreement is now negotiated and therefore not negotiable. It therefore all comes down to Article 48 of the Agreement, which states at the important part:
So, to represent clients before the UPC, a UK patent attorney (RPA) who is also an EPA (which is what most of the UK profession in practice is) must EITHER be considered a "lawyer" under (1), or must "have appropriate qualifications" under (2).
Disregarding complexities of interpretation brought about by the 15th draft of the Rules of Procedure, this Kat thought that it was right, proper, and (more importantly) likely that RPAs would be considered as lawyers under (1), since the Legal Services Act 2007 says so. So it came as a bit of a surprise when it turned out that many in the room considered otherwise. However, he cannot dispute the validity of the contrary logic, that, UK legislation notwithstanding, the historic position before the Court of Justice is that for the UK "lawyer" means "solicitor or barrister".
So that brings us to (2). This Kat was equally surprised (because the thought had not occurred to him before) to hear for the first time the proposal that if RPA status did not confer on the holder the status of "lawyer", it might nevertheless count as "appropriate qualifications" under (2). The reasoning being that this is what gives the person the right to practice before a UK court (the IPEC).
It is clear that anything that UK patent attorneys wish to rely on in order to have the right to represent at the UPC cannot come by reliance on any aspect of their competence or experience as an EPA, because Art 48(2) makes it clear that being an EPA as such is not sufficient.
Another possibility that was discussed is that even if an RPA did not as such have "appropriate qualifications", such a person would start from a different position than a person who was only an EPA, and therefore it could be argued that a more streamlined training could count as equivalent to "a European Patent Litigation Certificate", so that a rather short training course might suffice. In this regard, this Kat is very concerned that apparently not only does the "European Patent Litigation Certificate" not exist, there is currently no clear mechanism for any future course to be accredited as being it.
There was discussion concerning whether right to practice before the UPC should be a centrally governed matter, or whether the Court should rely on individual member states to certify according to the national norms. It is not clear that the latter is actually possible even if desirable. There was also disagreement as to whether the national route would result in the bar being set higher, or lower.
Of course some RPAs have higher litigation rights - apparently about 70 have the Higher Courts Litigation Certificate and 6 have the Higher Courts Advocacy Certificate (of whom apparently no fewer than 4 were in the room). Naturally those people felt that even if ordinary RPAs were not automatically entitled to represent, then either under (1) or (2), or by some kind of grandfathering provision, they should be considered to have the representation right. This Kat entirely agrees with this position, but it does not address the issue of the overwhelming majority of the UK profession.
An interesting point that was raised is that a Register will be maintained under (2) but not under (1), and at least one person considered that it was an advantage to have one's right to practice listed on a consultable register.
Another point raised that this Kat had not thought of before - will practising before the UPC be covered by existing national regulatory structures, or will amendment of regulatory provisions be necessary to ensure that persons are subject to regulation when they practise before the UPC as they are when they practise nationally? Do all countries even regulate their lawyers at the moment?
Like so many aspects of the Unitary Patent and UPC, small details make a huge difference, and only time will reveal more. Apparently the Working Group is preoccupied with the unexpectedly huge number of expressions of interest in becoming a UPC judge, and so the issue of representation is not as high a priority as clearly it should be. The IPKat hopes for some progress soon. At the very least, it is essential that everyone who will be able to represent can do so from the start, since at the beginning the process will be new for everyone. If patent attorneys have to wait until some "European Patent Litigation Certificate" comes into being, then clients, and the whole system, will suffer.
There now follows a digression of comparative zoology. The IPKat is not an Octopussy, and therefore he is able to contribute to the debate and tweet, or take notes, but cannot do both. Since he did the former (@EIP_Elements), he emerged with no further written record. He is also not an Elephant, and therefore suffers from imperfect recollection. Moreover, unlike a Chameleon, when he is sitting at the front of the room, he cannot see behind him, and therefore he was not always aware of who was speaking at any given time. For that reason, in the report that follows, he will not attempt to attribute specific comments to specific people.
Purely by chance, this outcome of necessity probably serves an admirable purpose of encouraging open speech, because it may well be that some of the attendees were expressing provisional opinions that they might not wish to see attributed to them with the finality of the written word.
The advertised lineup was as follows.
Chairman:
Roger Burt, President of CIPA
Speakers:
Neil Feinson, Director of International Policy, IPO.
Mr Justice Birss
Chris Mercer, Carpmaels & Ransford LLP
Vicky Salmon, IP Asset LLP
Roger Burt and Neil Feinson gave suitably general opening remarks. Vicky Salmon opened the topic of Rights of Representation, while Chris Mercer opened the topic of Rule 286 of the Rules of Procedure (concerning how right to practise before the UPC will be evidenced). Each of these opening presentations was followed by a period of open debate. Mr Justice Birss then summarised what he had heard and gave some thoughts of his own.
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| Did someone say "Sir Colin"? |
If this Kat has understood correctly, Mr Justice Birss is the UK representative on the advisory committee that will advise the Human resources and training Working Group (led Mr. Oliver Varhelyi – Hungary) which is the part of the Preparatory Committee that is responsible for representation, as well as for the selection and training of UPC judges (see the 18 December 2013 news here, which outlines the structure.)
The upshot of the debate seems to this Kat to come down to the following.
Firstly, we need to concentrate on the wording of the UPC Agreement, not the Rules of Procedure, which are currently a bit of a mess around the subject of representation (and proof of entitlement to represent) and are making a complicated situation even more difficult. The current draft of the Rules of Procedure are not the final version and can and presumably will be changed. The Agreement is now negotiated and therefore not negotiable. It therefore all comes down to Article 48 of the Agreement, which states at the important part:
"(1) Parties shall be represented by lawyers authorised to practise before a court of a Contracting Member State.
(2) Parties may alternatively be represented by European Patent Attorneys who are entitled to act as professional representatives before the European Patent Office pursuant to Article 134 of the EPC and who have appropriate qualifications such as a European Patent Litigation Certificate. "
Disregarding complexities of interpretation brought about by the 15th draft of the Rules of Procedure, this Kat thought that it was right, proper, and (more importantly) likely that RPAs would be considered as lawyers under (1), since the Legal Services Act 2007 says so. So it came as a bit of a surprise when it turned out that many in the room considered otherwise. However, he cannot dispute the validity of the contrary logic, that, UK legislation notwithstanding, the historic position before the Court of Justice is that for the UK "lawyer" means "solicitor or barrister".
So that brings us to (2). This Kat was equally surprised (because the thought had not occurred to him before) to hear for the first time the proposal that if RPA status did not confer on the holder the status of "lawyer", it might nevertheless count as "appropriate qualifications" under (2). The reasoning being that this is what gives the person the right to practice before a UK court (the IPEC).
It is clear that anything that UK patent attorneys wish to rely on in order to have the right to represent at the UPC cannot come by reliance on any aspect of their competence or experience as an EPA, because Art 48(2) makes it clear that being an EPA as such is not sufficient.
Another possibility that was discussed is that even if an RPA did not as such have "appropriate qualifications", such a person would start from a different position than a person who was only an EPA, and therefore it could be argued that a more streamlined training could count as equivalent to "a European Patent Litigation Certificate", so that a rather short training course might suffice. In this regard, this Kat is very concerned that apparently not only does the "European Patent Litigation Certificate" not exist, there is currently no clear mechanism for any future course to be accredited as being it.
There was discussion concerning whether right to practice before the UPC should be a centrally governed matter, or whether the Court should rely on individual member states to certify according to the national norms. It is not clear that the latter is actually possible even if desirable. There was also disagreement as to whether the national route would result in the bar being set higher, or lower.
Of course some RPAs have higher litigation rights - apparently about 70 have the Higher Courts Litigation Certificate and 6 have the Higher Courts Advocacy Certificate (of whom apparently no fewer than 4 were in the room). Naturally those people felt that even if ordinary RPAs were not automatically entitled to represent, then either under (1) or (2), or by some kind of grandfathering provision, they should be considered to have the representation right. This Kat entirely agrees with this position, but it does not address the issue of the overwhelming majority of the UK profession.
An interesting point that was raised is that a Register will be maintained under (2) but not under (1), and at least one person considered that it was an advantage to have one's right to practice listed on a consultable register.
Another point raised that this Kat had not thought of before - will practising before the UPC be covered by existing national regulatory structures, or will amendment of regulatory provisions be necessary to ensure that persons are subject to regulation when they practise before the UPC as they are when they practise nationally? Do all countries even regulate their lawyers at the moment?
Like so many aspects of the Unitary Patent and UPC, small details make a huge difference, and only time will reveal more. Apparently the Working Group is preoccupied with the unexpectedly huge number of expressions of interest in becoming a UPC judge, and so the issue of representation is not as high a priority as clearly it should be. The IPKat hopes for some progress soon. At the very least, it is essential that everyone who will be able to represent can do so from the start, since at the beginning the process will be new for everyone. If patent attorneys have to wait until some "European Patent Litigation Certificate" comes into being, then clients, and the whole system, will suffer.
