Context: In the Unified Patent Court’s (UPC) Paris Central Division (LD), Finnish patent attorney and inventor Mikko Väänänen, representing his own company Suinno Oy, is suing Microsoft. On June 26, 2024, the Paris CD already rejected, in the context of a sealing motion, the defendant’s argument that someone representing their own company has a loyalty conflict rendering their motions inadmissible (June 2024 LinkedIn post by ip fray).
What’s new: Today the Paris CD’s Presiding Judge (and judge-rapporteur on this matter) Paolo Catallozzi has thrown out another Microsoft motion raising the question of due representation as well as one concerning the clarity of the injunction request and the damages claim (PDF). On this occasion, Presiding Judge Catallozzi has provided further clarification.
Direct impact: Microsoft may not like the fact that the inventor is representing his own company, but the court has made it clear that the case will go forward on that basis. Microsoft can and likely will re-raise the issue if it appeals.
Wider ramifications: Other patent attorneys who hold patents may also elect to represent themselves before the UPC if they are qualified UPC litigators. They will welcome the clarification (though subject to an appeal) that the Paris CD has provided. With a view to other cases, the requirements for sufficiently concrete and specific claims are also potentially instructive.
In the sealing context, Judge Catallozzi already held that the requirement for independent representation is meant to protect the party whose representative may be represented, and not its adversaries:
“In any case, it can be observed that given the instrumental nature of the obligation of independence to protect the party’s right to an effective defence in court, its possible violation cannot be asserted by the counterparty, which has no interest in such a finding, but only by the party for whose benefit such an obligation is placed.”
Primarily, however, the decision in June was based on the absence of misconduct.
Today’s order elaborates again on the question of who can actually bring allegations of disloyal representation:
- The violation of the obligation to act as an independent counsellor, imposed by the code of conduct, has to be assessed with reference to the possible harm to the interests of the party on whose behalf the professional acts.
- The violation of the obligation to act as an independent counsellor cannot be asserted by the opposing party, which has no interest in such a finding, but only by the party for whose benefit such an obligation is placed.
- The fact that a party’s representative also carries out active administration tasks on behalf of the represented party and that he may be directly interested in the outcome of the case is not decisive in order to consider that the representative is not independent for the purposes of the application of Rules 290, 291 and 292 ‘RoP’.
That takes care of all pro se litigations, including those in which there are technically two different legal entities (a company and a person, though economically and practically the same here).
The context here was that Microsoft opposed not merely a sealing motion but wanted the whole action dismissed on that basis.
An alternative proposed ground for dismissal was that the statement of claim was, according to the motion, insufficiently concrete and specific. In particular, the plaintiff is seeking “an injunction on the important and sale” of the accused product, which Microsoft says can’t work because the UPC has no jurisdiction over third parties who may do so, and a request to “determine and award past damages with interest, as applicable” was indefinite.
Judge Catallozi, however, reads the injunction request as referring only to what Microsoft itself might do. Therefore, it is not manifestly inadmissible. He also considered the damages claim to be sufficiently specific as the statement of claim talks about “April 2019 and later years in Finland, Germany, and France for the period of infringement.”
Microsoft tried to get rid of this litigation early on and wanted to leave no stone unturned in this unprecedented situation, which is understandable, but the case will now go forward.
Microsoft is represented by Bardehle Pagenberg’s Nadine Westermeyer.