A guide to the UPC and the UP - Flipbook - Page 78
5-44
The panel may also delegate the function of acting for the panel to a single judge and, in the
procedure for determining damages, compensation and costs, the functions of the panel may
be delegated to the judge-rapporteur who has prepared the action for the oral hearing. 105
Local Divisions
5-45
The composition of the panels for local divisions depends on the experience in patent litigation
of the Contracting Member State hosting that local division: in countries with less experience,
the majority of the panel are nationals from Contracting Member States other than the host
state, while in countries with more experience, the majority of the panel are nationals from that
respective host state. The rules on composition of the panels are as follows:
– If less than 50 patent cases per calendar year on average have been commenced in the
Contracting Member State during a period of three successive years prior or subsequent to
the entry into force of the UPCA, the panel consists of one legally qualified judge who is a
national of that Contracting Member State and two legally qualified judges who are not
nationals of that Contracting Member State and are allocated from the pool of judges on a
case by case basis. 106
– If 50 or more patent cases per calendar year on average have been commenced in the
Contracting Member State during a period of three successive years prior or subsequent to
the entry into force of the UPCA, the panel consists of two legally qualified judges who are
nationals of that Contracting Member State and one legally qualified judge who is not a
national of that Contracting Member State and are allocated from the pool of judges. This
third judge serves at this local division on a long term basis, where, if there is a high work
load, it is necessary for the efficient functioning of the division. 107
5-46
The UPCA and RoP do not refer to any methodology by which patent cases are to be counted.
However, France, Germany, Italy and the Netherlands have all demonstrated that they fall into
the latter category.
Regional Divisions
5-47
For regional divisions, the number of aggregate patent cases in previous years is not relevant to
the composition of the panels. Instead, the composition of the panels reflects the multinational
composition of the panels in “experienced” local divisions.
Central Division
5-48
105
106
107
108
Central division panels consist of two legally qualified judges who are nationals of different
Contracting Member States and one technically qualified judge with the relevant qualifications,
allocated from the pool of judges. In this way, the panels differ from the panels in the regional
and local divisions. However, for cases relating to the administrative work of the EPO in relation
to the Unitary patent under art.9 Unitary Patent Regulation, the panel consists of three legally
qualified judges who are nationals of different Contracting Member States. 108
r.345(4) RoP. See paragraphs 5-53 and 5-54 for the functions of the judge-rapporteur.
art.8(2) UPCA.
art.8(3) UPCA.
art.8(6) UPCA.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 68
