UPC: the Court of Appeal can decide without technically qualified judges
By three almost identical orders dated 18, 19 and 20 December 2023 (UPC_CoA_472/2023, UPC_CoA_476/2023 and UPC_CoA_478/2023), the Court of Appeal (CoA) of the UPC stated that in proceedings that do not involve technical issues, the Court of Appeal can decide without technically qualified judges.
Indeed, Art.9.1 of the UPCA requires that “Any panel of the Court of Appeal shall sit in a multinational composition of five judges. It shall sit in a composition of three legally qualified judges who are nationals of different Contracting Member States and two technically qualified judges with qualifications and experience in the field of technology concerned”.
However, the Court found that a procedural request where no technical issues are at hand can be adjudicated by three legally qualified judges. The reasons for this as outlined by the CoA are as follows.
· First, “this is consistent with the logic underlying the composition of the panels of the Court of First Instance (Art.8 UPCA and R.33, 34, 37.3, 57 and 72 RoP) and by way of analogy with Art.9.2 UPCA”.
· This “also ensures the cost effectiveness of proceedings and efficiency, thus ensuring expeditious decisions (UPCA, 6th Consideration), since otherwise one or several weeks would have to be added for the purpose of allocating two technically qualified judges with qualifications and experience in the field of technology concerned”.
· Finally, this is “in conformity with paragraphs 2 through 4 of the Preamble of the RoP, according to which the Rules shall be applied and interpreted in accordance with Art.41(3), 42 and 52(1) UPCA on the basis of the principles of proportionality, flexibility, fairness and equity. Proportionality shall be ensured by giving due consideration to the nature and complexity of each action and its importance. Flexibility shall be ensured by applying all procedural rules in a flexible and balanced manner with the required level of discretion for the judges to organise the proceedings in the most efficient and cost effective manner”.
[For an overview of unitary patents and UPC, find our posts here on this blog and our podcast here on Spotify]
