Context: Last week (and on various prior occasions on LinkedIn), ip fray wrote that “[t]he UPC’s dysfunctional case management system [CMS] is an unmitigated disaster that the court and those running it should be ashamed of.” CMS issues have had various negative effects, including substantial delays of important filings as well as incorrect times in invitations to hearings, resulting in the delayed arrival of counsel.
What’s new: Yesterday (May 1, 2024) the UPC’s The Hague Local Division had to rule (PDF (in Dutch)) on the stipulated dismissal of an infringement action (UPC webpage) brought by Belgium’s Keestrack against Dutch company Geha Laverman because CMS issues prevented the defendant from filing a timely response in the CMS. Given that the defendant informed the UPC of those issues within the deadline by email and documented the problems with the CMS in the form of screenshots, the court approved the withdrawal of the complaint. And in order to avoid renewed CMS issues, the court accepts the request for a partial refund of court fees though, by apparent oversight, plaintiff’s counsel referenced the wrong paragraph of the Rules of Procedure. In other words, the judges have had enough of those CMS problems, thus didn’t want to entertain one or two more filings only to address an obvious mistake.
Direct impact: The court couldn’t have decided any other way on the withdrawal, and did the right thing by treating the refund request as if it had referenced the correct paragraph in order to streamline the process. Given that the UPC went into operation almost a year ago, the situation is not only embarrassing but truly unacceptable and disgraceful. It is a waste of court and party resources, and it also reduces the court’s transparency as the general public does not have access to a properly functioning web interface to search for cases.
Wider ramifications: The fact that those CMS issues persist after such a long time is not the only issue of its kind. The court’s leadership was originally insensitive to conflict-of-interest issues concerning part-time judges (many of whom are patent attorneys working for companies or in private practice) until there was media coverage. Those issues combined raise the question of whether the root cause of certain problems at the UPC is a deficient governance structure: it appears to be a court system out of control. That is separate from the independence of judges (whose removal from office must be limited to highly exceptional situations). Other courts also have independent judges, but do not get to make their own rules and do not get to run their own administration without democratic oversight. If other court systems faced similar issues over such a long period of time, there would be a parliamentary investigation and someone might have to resign.
The decision does not state the reason for which the plaintiff no longer wanted to pursue its complaint over a mechanical patent. There may have been a settlement, or maybe the defendant convinced the plaintiff that the complaint had no merit.
On March 5, 2024, the plaintiff filed a withdrawal request unter Rule 265 of the UPC’s Rules of Procedure and asked for a partial refund of costs. On March 18, 2024, the UPC entered an order that gave the defendant until March 22 to respond. But in the UPC’s CMS, which the court’s rules treat as the exclusive portal for such submissions, the response was not filed until a month later: April 22.
The April 22 (one month late) filing showed that the defendant’s counsel actually did try on March 22 to make a timely submission, but neither could they save the PDF/A document with Adobe’s software nor were they able to access the UPC’s CMS. To that April 22 filing, the defendant’s counsel attached an email that was sent to the court within the deadline and explained the technical problems, along with screenshots.
In consideration of all those circumstances, also including the timely email that reported the problems, the UPC’s The Hague Local Division decided to accept the defendant’s stipulation of the dismissal of the case.
On LinkedIn, which has become the primarily discussion board for the patent law community (at least for its U.S. and European parts), one can read about CMS issues all the time. Just recently, a name partner of a firm that has filed many UPC actions already implored the UPC’s Registrar, Alexander Ramsay, to make more of an effort to address the issues, which according to that lawyer forced associates of his firm to spend many hours of overtime.
The UPC is acting like a rogue organization that is accountable to no one, unless and until there is bad press, such as with respect to conflicts of interest (which have not been fully resolved, but at least the UPC took some steps, even if only after there was criticism in influential media, to address the problem to some extent). At some point the UPC’s leadership will have to get its act together or there could be political backlash. The European Commission and a vast majority of the European Parliament have decided that they are going to legislate on standard-essential patents (SEPs) without even awaiting the development of the UPC’s SEP case law. This means there are policy makers and lawmakers who do not trust the UPC yet. The UPC has to earn that trust first, which includes putting a functional IT infrastructure in place.