European patents – who can act?

After a long wait – I wrote about this in February - the Unified Patent Court (UPC) has finally issued its consultation on the European Patent Litigation Certificate (EPLC), focusing on who can represent clients before the new court. I know that lawyers always have an interest in who has access to rights of audience. (For those wishing to reply, cancel your summer holiday: the deadline is Friday 25 July.)

 The UPC Agreement lays down the basic framework for representation. Article 48 (1) says clearly that ‘parties shall be represented by lawyers authorised to practise before a court of a Contracting Member State’. So lawyers qualify as representatives. But article 48 (2) says that ‘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’. It is this alternate representation, and in particular the second leg of article 48 (2) – the ‘and who have appropriate qualifications’ – which the UPC’s new consultation covers.

 The document raises the old question of whether those who act in a specialist legal subject area only – for instance, representation before a specialist court and nothing else – need a broad-based education similar to that received by lawyers, so as to deal with all the issues which can arise in any area of law (on the basis that all law is tied together by similar concepts); or whether a more narrow education will suffice. It is similar to the question underlying the training of those able to undertake conveyancing or the drawing up of wills or any other activity normally reserved to lawyers.

 The consultation says that it has tried to find the right balance between the general and the specific. Those seeking to acquire an EPLC will require a basic knowledge of law – covering EU law, private law with a focus on contract law, company law and tort law in both common and continental law, as well as private international law (including the Brussels I, Rome I and Rome II Regulations and relevant case law of the Court of Justice of the European Union) – together with an advanced knowledge of those aspects of law and litigation that will be part of the daily business of a litigator before the UPC. The course will last a minimum of 120 hours, and be followed by a written and oral exam. The question is whether this is enough.

The explanatory note also says that ‘certain robust legal qualifications render acquisition of the certificate unnecessary’. We know that lawyers are excluded from needing the certificate, but who else? Well, the draft decision says that existing European patent attorneys who have a bachelor or master’s degree in law or who have passed an equivalent state exam in law in an EU member state will qualify to apply to be a representative. Given that the EPLC will not be available in the opening years of the UPC, there is a transitional provision which says that during the first three years of the UPC’s existence, successful completion of a number of existing patent litigation courses will also suffice for registration – among those listed are named courses from Nottingham Law School, Queen Mary College London, Brunel University London and Bournemouth University.

More controversially perhaps, and also only during the first three transitional years, practical experience acquired by having represented a party in three patent infringement actions initiated before a national court of a contracting member state within the five preceding years will also be recognised as appropriate qualification, provided that it was done on one’s own without the assistance of a lawyer.

Once it is established, where will you be able to study for the EPLC? Draft Rule 2 tells us that ‘The certificate may be issued by universities and other non-profit educational bodies of higher education in a contracting member state [as well as by the Unified Patent Court’s Training Centre in Budapest]’. The accompanying explanatory note says that: ‘Due to the public law nature of granting certificates and in order to ensure a satisfactory and harmonised quality level, the institution should be a public body at an academic level of a university and not a commercial provider of courses and conferences’. So all you private training providers, get your pencils sharpened if you feel you are being unfairly excluded. Presumably the universities listed as providing existing courses will soon switch to teaching the new EPLC course.

I would have liked to tell you what my own organisation, the Council of Bars and Law Societies of Europe, thinks of the proposal, but the publication is too recent, and we are still considering it. I thought it was more useful to bring it at an early stage to the attention of those interested in replying.

Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs