Tuesday, 22 April 2014

Required subjects for the European Patent Litigation Certificate

As discussed earlier the Draft Proposal for Rules On The European Patent Litigation Certificate And Other Appropriate Qualifications that was published allows European patent attorneys to represent parties before the unified patent court if they have a European Patent Litigation Certificate.

Having such a certificate is not required to represent parties before the UPC. For one thing, you could be a lawyer. It would also be sufficient to have a law degree in addition to being a European patent attorney.

So presumably the certificate aims to teach patent attorneys those parts of a law degree that are needed to go before the court.

The draft contains a list of 8 topics that a course for the European patent litigation certificate should cover. Below I'll categorize the requirements and compare them with a typical law curriculum.   (I have done a law bachelor, so mainly I'll compare the certificate to what happened to be required at my University).

First of all, a patent attorney who wants to practice before the UPC needs to be well versed in the UPC.

You'll need to know the law: two EU regulations (Regulations 1157/2012 and 1160/2012), the Agreement on the Unified Patent Court and Statute, and its Rules of Procedure.

But, you also need to know how this will work in practice: the litigation, procedures, practice, and case management before the Unified Patent Court. This should include practical exercise on litigation and negotiation.

For the most part: Fair enough. Although, most law degrees will not cover the UPC (and possibly not even patents!), I can imagine that you want prospective professional UPC representative to know what the filing deadlines are.

Why is negotiation included? Useful to be sure, but then again so many things would be useful. I would also have expected pleading before a court to be more prominent in the requirements.

Second, the course should cover patent infringement and patent nullity proceedings in Contracting Member States.  

This requirement is a bit more puzzling. I would say that patent nullity proceedings are already covered by the EQE. Any patent attorney practices patent nullity proceedings before the EPO, including its board of appeal, as part of his work. For sure, any European patent attorney will know much more than most law students on invalidating a patent. I would venture that the same holds for infringement, although, admittedly, this is not part of the EQE.

I find the reference to 'patent infringement and patent nullity proceedings in Contracting Member States' a bit puzzling. This is a plural, so one should not read this as patent infringement and patent nullity proceedings in a Contracting Member States. Lawyers need to know the law in only one state, why would this be different?

On the other hand, surely, one cannot be expected to know much if anything about all 25 Contracting Member States? 

What one would really want to cover are patent infringement and patent nullity proceedings in the unified patent court. Unfortunately, given the current lack of case law for that court that is not possible.  In any case, assuming that the unitary patent will be a big success, wouldn't knowledge of the patent law of the individual contracting states be quickly outdated? 

The course should also include the role, organization, and patent-related case law of the Court of Justice of the European Union, including case law on supplementary protection certificates. At least the case law of the Court of Justice is valid in all Contracting Member States and the UPC.

Third, the course should cover a mini-version of a law curriculum, including:  a general introduction into law, including main aspects of European law;  basic knowledge of private law, including contract law and company law, in both common and continental law; basic knowledge of international private law.

Although a lawyer is expected to have had at least an introduction in all these subjects, I'm not sure what the reference 'in both common and continental law' should mean. Is this referring to the company law in the 25 states? I would guess that for most continental lawyers knowledge of common law company law is rudimentary at best. I'm sure that I know what 'continental company law' means.

This category has the best match with the requirements of a law degree, although here as well, it seems to go a bit beyond a typical law curriculum. 

Overall, I think the three categories are sensible choices. Nevertheless, some of the requirements seem to  go a bit too far.

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