Do you believe interactions between judges and practitioners in environments like this can influence how litigation is approached in the UPC?
I do believe that such interaction is beneficial for the proceedings. Getting to know each other, while maintaining independence in court room, naturally leads to friendlier hearings. Similarly, representatives knowing each other contribute to a less hostile environment. While judges know that representatives fight for their clients' rights, fighting with drawn daggers is not always the best way to convince a court… even if the clients are present in the courtroom.
If you were to leave practitioners who already litigate before the UPC with one piece of advice, what would it be? And for a practitioner preparing for their first substantial UPC case?
It is advisable to reach agreements on as many side issues as possible (confidentiality, security, costs, etc.) before the actual hearing. This will lead to win-win situations for claimants and defendants alike, while also limiting clients' costs and enabling the court to focus on the main issues.
What in your view are the key differences between being a judge before the UPC and before national courts (in terms of perspective, strategy, preparation)? And what are the struggles you faced when transitioning from the national court to the UPC?
While the role of a national (Belgian) judge has evolved towards that of a case manager and settlement seeker, the UPC has reached (probably) a positive endpoint. The difference is that, at a national (Belgian) level, a judge manages the case (or tries to find a settlement) right before and during the hearing, which can lead to postponements. In contrast, the Judge Rapporteur (JR) is obliged to deal with every issue before the hearing when submitted and, ultimately, during the interim phase of the proceedings as postponements are not really opportune as it is already difficult to set hearing dates and impossible during the hearing. Consequently, a national (Belgian) judge has more control over his/her agenda, whereas the agenda of a UPC judge (especially a JR) is dictated by “urgent” requests that can be submitted at almost any stage during the drafting phase.
How do you see the “technical-legal” composition of the UPC panels contributing to better-informed decisions and what challenges remain?
I consider the Technically Qualified Judge (TQJ) addition to be extremely beneficial in patent proceedings. For a Legally Qualified Judge (LQJ), it allows the panel to structurally prepare an action on a technical level and enables informal requests for clarification when studying technical issues. Furthermore, it is important to note that, in view of the deliberation process, the distinction between "legal" and "technical" should be disregarded. Each judge should be permitted to express his/her opinion on every issue. The TQJ could contribute valuable insights into legal issues, just as the LQJ could into technical issues.
How do you see the role of the court in global SEP and FRAND disputes? And do you see a role for arbitration?
I can see a role for arbitration, but probably not once an action has already been introduced. A JR is unlikely to refer parties to arbitration being a private court.
On the other hand, I believe that mediation would be a step forward in such cases. The UPC in its decision taking process could work alongside a mediation process, ensuring that the parties do not lose their right to have their dispute assessed by the court while mediation is underway. Ideally, based on the circumstances of the case, UPC proceedings could be structured so that issues of a less legal nature, such as license fee issues, could be referred to a mediator. Meanwhile, purely legal issues could be addressed in UPC written submissions. If mediation does not result in a settlement on a specific issue, there could be an additional round of submissions limited to such unresolved issue which needs to be assessed by the court.
