Number of UK UPC Local Divisions dependent on method of counting UK patent cases
A study by Powell Gilbert [1] has revealed that if patent cases were counted in the same way as in Germany the UK could be entitled to as many as four local divisions of the UPC. Earlier estimates [2] of the number of patent cases in the UK would have meant that the UK would have been entitled to only one local division. A local division could be made up of a majority of foreign judges if the number of patent cases per year was low enough.
Local and regional divisions of the Unified Patent Court
The Unified Patent Court (UPC) will have a number of local and regional divisions located throughout the EU. There will also be a central division that will deal mainly with declaratory judgements of non-infringement and revocation actions. Each member state has the option of setting up one local division if they wish, however regional divisions give countries the option of joining together as a group. For example, where the number of patents cases in the individual member states is low or the member states do not want the expense of running a local division on their own.
Normally, the judging panel for a case in a local division will be one local legal judge plus two foreign legal judges. However, if there have been more than 50 patent cases in that state during the last 3 years then the judging panel will have two local legal judges with one foreign legal judge.
Multiple local divisions
If a member state has had enough patent cases commenced in the past three years it can host more than one local division up to a maximum of four. For every 100 cases commenced per calendar year in three successive years a member state can set up an additional local division.
Therefore, the number of patent cases per year effects not only the number of local divisions that a member state is allowed, but also the composition of the judging panel for those cases tried at the local division within the member state.
Using German counting of patent cases on UK patent cases significantly raises the total within UK
The study by Powell Gilbert [1] indicates that in German courts the practice is to spilt patent cases by patent, by party, and also by treating claims for revocation separate to any infringement action. Therefore, this leads to a high number of individual “cases” in Germany that were actually originally part of one action. By contrast, in the UK it might be common to try all of those issues together in one case. This would therefore only lead to one case in the “number of patent cases” box instead of the multiple cases under the German system.
The study revealed that in the UK there have been 165 patent cases on average in each of 2011 and 2012. This means that even on this measure the UK would be entitled to host two local divisions of the UPC. However, if these raw figures on cases are split up along a more German model of case structure then the UK individual claim totals are estimated in the study to be in the mid-300s for each year. This would entitle the UK to the full four local divisions of the UPC in line with Germany.
If such a counting system was adopted, and the UK decided to fund the full four local divisions, then the UK would rival Germany in the size of its court system under the UPC.
[2] http://jiplp.oxfordjournals.org/content/8/11/846.abstract
