One of ip fray‘s objectives regarding the UPC — apart from covering the development of case law (e.g., today’s article on the Meril v. Edwards Lifesciences validity decision) — is to introduce influential, but thus far lesser-known, patent judges to the IP community.
On a hot summer day earlier this week ip fray‘s founder had the opportunity in Vienna to meet (in informal summer clothes due do the temperatures) Judge Dr. Walter Schober, presently the only legally qualified judge from Austria to sit on the Unified Patent Court (UPC) and still Austria’s highest-ranking patent-specialized judge. Patent litigators now see Judge Dr. Schober, obviously a native speaker of German, complementing the panels of the UPC’s Germany-based Local Divisions. He had interesting perspectives and insights to offer — and his wish regarding a new case management system is apparently going to be granted (July 19, 2024 LinkedIn post by ip fray).
ip fray: Thank you for taking the time to meet and talk about your background and your views. You must be extremely busy, just looking at the various UPC cases that list you as a panel member. How many UPC cases and in what venues are you presently involved with?
Judge Schober: Approximately ten. A second case was filed with the Vienna Local Division a few months ago after the preliminary injunction matter that was resolved last year, and I’m helping out my German colleagues in Munich, Dusseldorf, Mannheim and Hamburg with respect to one or two cases per venue.
ip fray: That’s quite a multi-city docket. And you’re actually dividing your time between the UPC and an appeals court in Vienna. Please tell ip fray‘s readers a bit more about how patent litigation works in Austria at the national level and what role your court plays in it.
Judge Schober: In Austria, all patent infringement complaints must be lodged with the Vienna Commercial Court. Over all appeals from those cases as well as from decisions of the Austrian Patent Office, the Vienna Higher Regional Court has exclusive appellate jurisdiction. There were times when we heard approximately 20 appeals in a single year, and in recent years it has been more like 10 to 15 cases. The primary fields of technology are mechanical engineering, chemistry, pharmaceutics.
ip fray: How do you divide your time between the two courts?
Judge Schober: That’s a complicated subject. Unlike our German colleagues, Austrian judges don’t have the flexibility — at least not yet — to work only part-time on a national court. There are a few exceptions, such as for childcare obligations, but they don’t apply to my case. So I still have to handle the full caseload in Austria. On top of that, I have a part-time role — 20% — with the UPC.
ip fray: 100% on the Austrian appeals court and 20% on the UPC? That means a six-day workweek?
Judge Schober: Sort of. I’ve been asked to help out with so many UPC cases that on top of my full-time job in Austria I end up spending more time on UPC matters than the official quota.
ip fray: Is that sustainable?
Judge Schober: This situation is indeed suboptimal and a solution should be found. I hope that my country can make a legislative amendment to the applicable law so that duty on the UPC will serve to justify a reduced workload at the national level. I don’t see myself making a binary choice between one court or the other because I still feel attached to the Austrian judiciary. It would be preferable to be able to divide my time half-and-half, for example. With so many cases being filed in the Germany-based Local Divisions of the UPC, that would make sense.
ip fray: With these resource constraints, what would happen if more cases were filed with the Vienna Local Division? Could you handle them?
Judge Schober: Sure. If the cases are filed, we’ll put the resources in place to adjudicate them swiftly.
ip fray: It’s unfortunate that no one thought of a situation like the one you are experiencing now when Austria ratified the UPC Agreement. It looks like an oversight and it shouldn’t be hard to fix. What explains your idealism to spend more time on the UPC than you actually get paid for?
Judge Schober: I cherish the cooperation with my international colleagues. We all come from different jurisdictions and build on that experience, but we strive to avoid preconceived notions. Everyone is open-minded and highly motivated. For me personally, this is already the second opportunity to help build a new judicial body. Ten years ago, the appellate division over which I’m presiding now in Vienna was formed. Previously, there was a different setup. It’s a startup-like situation again. Interestingly, my appellate division in Vienna has always involved technically qualified judges not only in validity but also in infringement cases.
ip fray: Did you already know some of your UPC colleagues before the preparations for the new court began?
Judge Schober: Yes, there’s an annual meeting of European patent judges in Venice that I’ve attended many times over the course of the last decade.
ip fray: With your time constraints, do you still have the opportunity now to speak at UPC conferences?
Judge Schober: I get many more invitations than I can accept, so I have to prioritize Austrian events, which I consider my primary responsibility.
ip fray: Approximately half of all UPC hearings are held in English, though only a minority of the lawyers and presumably none of the judges are native speakers of that language. What’s the impact of that?
Judge Schober: I view the use of English at the Court rather favorably. It obviously requires many participants to express themselves in structurally simpler ways than in their native language. But there’s an upside to that limiting factor: non-native speakers adhere more strictly to the terminology found in the patent claims and specification instead of using synonyms or paraphrasing concepts. It is one of the cornerstones of patent interpretation that each patent serves as its own dictionary. Consistency is a good thing in that regard.
ip fray: If you could change anything about the UPC, what would you do to improve it?
Judge Schober: Before I answer that, let me note that the UPC is off to a very good start. The number of filings reflects a high level of acceptance. I believe that my colleagues all across Europe have done a good job during that first year. What was to be expected is that a whole new administrative infrastructure would involve certain challenges. In retrospect, it was not the best idea to pursue harmonization through mandatory workflows. Judges don’t operate on the basis of workflows. We work on our cases, each of which is different, and determine the next step at each juncture. It’s very limiting if we have to complete one workflow before we’re able to launch another. Usability improvements are needed, and above all we need more flexibility so that a judge can decide which workflow to start at which point.
ip fray: That sounds similar to what one can hear from lawyers practicing before the UPC. Thank you very much for this interesting conversation.
Judge Schober: You’re welcome.