Context: The Unified Patent Court (UPC) will soon celebrate the first anniversary of its launch. There are different views on whether its popularity has lived up to expectations. There has been a substantial number of filings, among them 110 infringement actions, but national courts (particularly in Germany) remain very popular. And opt-outs are rampant.
What’s new: Today the UPC announced (court press release) the appointment of three new legally qualified judges to strengthen the Munich and Mannheim Local Divisions, as well as an increase in working time for judges at the Court of Appeal, the Paris and Munich Central Divisions, and the Munich, Dusseldorf and Paris Local Divisions (many judges are dividing their working time between the UPC and national courts).
Direct impact: These measures appeared inevitable in order to maintain the short time from filing to decision that is a key feature of the UPC. The Munich Local Division received a particularly high share of all filings (approximately 40% of all infringement complaints), and even more resources be needed there in the near term.
Wider ramifications: The decision makers appear to have a pro-Dusseldorf and anti-Munich bias when it comes to the selection of judges. As a result, long commutes by judges (presumably air travel in most cases) increase, which is inconsistent with governmental policies to fight climate change. It is unclear to what extent this preference for Dusseldorf judges over their Munich counterparts has to do with the fact the President of the UPC, Judge Dr. Klaus Grabinski, started his career in Dusseldorf.
The oddest coincidence concerning German patent judges is that three of them are named Voss (“Voß” in German): the Presiding Judge of the Karlsruhe Higher Regional Court’s patent-specialized Sixth Senate (Judge Andreas Voss), Dusseldorf appellate and more recently the UPC’s Munich Central Division judge Ulrike Voss, and the presiding judge of one of the Dusseldorf lower court’s patent infringement divisions, Judge Daniel Voss.
The first Voss did not apply for a post on the UPC due to being close to retirement. The other two Judges Voss are now going to serve on the Munich Local Division. Judge Ulrike Voss is now dividing her time between the Munich Central and Local Divisions. Judge Daniel Voss is presumably going to divide his time between the Dusseldorf Regional Court and the UPC’s Munich Local Division, which is a major commute.
UPC judges are already traveling a lot, and presumably often by plane. It was part of the plan to bring in one foreign judge (who speaks the language of proceedings). As a result, Judge Walter Schober, who presides over the Vienna Local Division, ends up spending a lot more time on various German UPC benches (even Hamburg, which is a 500-mile flight or 1,000 km train ride from Vienna) than on his own Local Division. He’s the only native speaker of German among UPC judges who is not a German national (Austria’s official language is German). Dutch judges Edger Brinkman and András Kupecz speak German as a second language that is close to their native tongue. In any event, some cases before German UPC Local Divisions are already being litigated in English.
Within reason, travel by UPC judges is obviously acceptable, especially since it is small compared to air travel by counsel (for instance, many Dusseldorf lawyers spend a high percentage of their time litigating cases in Munich). But it is puzzling that the UPC continues to necessitate commutes through its judge selection strategy.
The reinforcement of the Mannheim Local Division is a local: Judge Dirk Boettcher (“Böttcher” in German), the deputy of Presiding Judge Dr. Holger Kircher on the Mannheim Regional Court.
But it is surprising that no Munich judge was selected this time when that one is actually the most popular venue. That cannot be a coincidence. There must be an agenda, and the question is just whose and what it is.
Dusseldorf is the number two UPC Local Division (24 infringement actions filed so far versus 43 in Munich). But Dusseldorf judges were from the beginning sent to three other cities: Judge Ulrike Voss to the Munich Central Division and Judge Sabine Klepsch to the Hamburg Local Division. Now Judge Ulrike Voss will additionally be serving on a second Munich division, and Judge Daniel Voss will commute to Munich (300 miles by plane, 600 km by car or train).
All three presiding judges of the Munich I Regional Court’s patent infringement divisions as well as the presiding judge of the Munich Higher Regional Court’s patent-specialized senate have only been appointed in recent years. But they have adjudicated many cases and several of them have also made themselves a name in academic circles. Moreover, a very experienced Munich patent judge, Judge Andreas Mueller (“Müller” in German), has not heard patent cases in recent years but used to do so, including during the “Smartphone Patent Wars.”
It would have made sense for the UPC to appoint at least one Munich judge as that city has become its center of gravity. For plaintiffs, however, those appointments are at least neutral: Judge Daniel Voss has been widely regarded as the patentee-friendliest Dusseldorf judge in a long time, and Judge Ulrike Voss is not an “anti-patent” judge either.
Maybe the UPC’s next round of appointments will involve one or two judges from the Munich talent pool, and reassignments could reduce the need for air commutes over time. What is more urgent, however, is the need for the UPC to fix various technical issues, some of which are serious and not merely glitches, concerning its case management system.