This Kat has been following with great interest (and indeed some personal stake) the question of who will be entitled to represent before the Unified Patent Court (see for example previous post here). Well, he has just noticed that there has been posted for consultation a draft proposal, complete with explanatory memorandum in relation to the "European Patent Litigation Certificate", which is what someone who is not a "lawyer" will need, in addition to being a European Patent Attorney, to conduct litigation before the UPC.
The requirements for the course are not as onerous as had been feared by some - a minimum of 120 hours - and the curriculum is pretty much as might have been expected as well (see Rule 3). A written exam and an oral exam are both mandatory according to Rule 4 (how continental - exclaims Merpel - oral examination!).
For Chartered Patent Attorneys (wot is wot this mog is), the current proposal is not what had been hoped - either a recognition as "lawyers" or a general grandfathering (i.e. recognition of a pre-existing qualification). However, it is also more generous than had been feared, since all of the following qualifications are proposed to be grandfathered for a transitional period of three years:
- Nottingham Law School, course “Intellectual Property Litigation and Advocacy”
- Queen Mary College London, courses “Certificate in Intellectual Property Law” or “MSc Management of Intellectual Property”;
- Brunel University London, course “Intellectual Property Law Postgraduate Certificate”
- Bournemouth University, course “Intellectual Property Postgraduate Certificate”;
While this will not cover all CPAs, it will cover a decent proportion of the profession. If there is to be a compromise, this is not a bad one. On the other hand, it will adversely affect CPAs who qualified by the JEB examination route. Also, perhaps strangely, there seems to be no recognition as such of CPAs who hold a litigator's certificate, who may, but need not, have done the Nottingham course.
As an alternative, a patent attorney who has "represented a party on his own without the assistance of a lawyer admitted to the relevant court in at least three patent infringement actions" can also be grandfathered. However, the requirement that no lawyer have been involved makes this proposal as currently drafted, at least as regards the UK, seem of rather narrow applicability.
This Kat considers that it is important that potential litigants have a variety of choice in representation from the beginning, as reflected in the Explanatory Memorandum:
Therefore, the recognition of other appropriate qualifications is necessary in order to allow the UPC to start with a sufficient number of qualified EPA representatives. Also, certain robust legal qualifications render acquisition of the Certificate unnecessary.Moreover, in the initial stages, the UPC system will be new to everyone, so all representatives will be using a system that is unfamiliar to them.
The deadline to provide comments is midnight on Friday 25 July 2014. Do get in your comments!
IMPORTANT UPDATE FROM CIPA
The IPKat is delighted to hear this news from Vicki Salmon:
CIPA and the IPO are holding a joint seminar to discuss this consultation on
The panel will include Mr Justice Birss and a representative from the IPO. Vicki Salmon will be chairing. A form to book places will be made available on the CIPA website soon, and will be emailed to members.
[Merpel understands that the originally proposed date conflicted with some sort of sporting event]