A guide to the UPC and the UP - Flipbook - Page 17
Common Law, Civil Law or the Best of Both?
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A major difference between common law and civil law systems is the common law concept
of stare decisis or the doctrine of binding precedents. Although there is no mention of such
concept in either the UPCA or the RoP, it is expected that decisions of the Court of Appeal
will be binding on all the divisions of the Court of First Instance, with the aim of ensuring
uniformity in the developing body of substantive and procedural law.
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The RoP are derived from both common law and civil law concepts. Despite the aim of
uniformity, there is potential scope for variations of interpretation depending on the location
of the divisions of the Court and the background of the judges presiding in that division.
Ultimately any major divergence of approach will be settled by the Court of Appeal, although
the system allows for what has been called the “couleur locale” of the various local and
regional divisions of the Court.
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Examples of the important substantive and procedural issues likely to come before the Court
in its early days include:
– The standard for obtaining a preliminary injunction;
– Bifurcation of validity and infringement – this has been one of the most contentious
issues in the drafting of the RoP;
– The scope for obtaining a saisie, an inspection or a disclosure/documentary discovery order;
– The procedure for questioning witnesses and experts.
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In addition, the transitional provisions may involve complex and unpredictable scenarios
as a result of the parallel jurisdiction of the Court and the national courts over European
patents that have not been opted out. We discuss examples of such scenarios in chapter 8
but ultimately questions, in particular whether the earlier proceedings are the same or a
related cause of action, will have to be resolved by the Court and ultimately the CJEU.
Conclusion
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In conclusion, we are at the start of an exciting new patent system which allows for simplified,
less expensive, and consistent protection and enforcement of patents via the Court across a
vast geographical area with a population of approximately 400 million, with no fewer than 24
official languages and a wide variety of divergent legal systems. For the first time ever, national
courts in Europe have surrendered to an international, or rather supranational court operating
at first instance, with the power to adjudicate private disputes involving patents between
individuals and companies. It will be interesting and inspiring for all involved to participate
in the development of such a unique and ambitious project.
Table 1-1: Status of Member States as regards signing and ratification
of the UPCA, existence of local/regional divisions and identity of the
Presiding Judge 10
Country
Status
Division
Presiding Judge
Austria
Has signed and ratified UPC
Vienna
Mr Walter Schober
Belgium
Has signed and ratified UPC
Brussels
Mr Samuel Granata
10
Decision of the Presidium dated 17 April 2023.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 7
