Do you believe interactions between judges and practitioners in environments like this can influence how litigation is approached in the UPC?
Interactions and the sharing of opinions are essential. We often gain more from a conversation with a colleague or lawyer than from hours spent reading a court decision. In written exchanges, some questions remain unasked, whereas discussions at events like this allow for a fuller exchange of ideas and a clearer understanding of everyone’s perspective.
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?
This may be difficult advice to follow, especially when deadlines are tight and the issues are complex. However, I believe that the ability to summarise is a powerful tool. Presenting submissions to the court in a clear and concise manner enables the judge to quickly understand the essence of the party’s claim. A long-winded or poorly organised text can undermine valid arguments and the effectiveness of legal proceedings. Conversely, a concise presentation highlights the relevant facts, provides a precise legal framework for them, and facilitates decision-making. Synthesis does not imply superficiality, but rather rigour in selecting what is truly important, which contributes to a more efficient and accessible justice system.
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)?
Regarding my Portuguese experience, I would highlight two aspects: procedural issues and the appointment of a technical judge.
In Portugal, the Civil Procedure Code is applied in patent cases the same way as in any other case, with significant implications, particularly for case management and the duration of oral hearings. At the UPC, judges have greater control over proceedings, enabling more efficient case management than at the national level.
As for hearings, Portuguese proceedings typically allow, and often involve the presentation of numerous witnesses, most of whom are experts. As a result, even relatively simple cases can take three to four days of hearings. The UPC also offers much greater efficiency in this respect.
I would also note that, at the national level, judges are often heavily overburdened, leaving them with limited time to adequately prepare cases before hearings. This makes a significant difference compared to a system where judges have sufficient time to study the case thoroughly and discuss it with their panel in advance. Even if it is not a procedural issue, it impacts the procedure.
Another key difference is the involvement of a Technical Judge, which significantly impacts the proceedings. Having a technical perspective enables a deeper, more precise understanding of the case. From my experience as a legal judge, this makes it both easier and faster to understand the parties’ arguments in light of the technical issues involved.
What are the struggles you faced when transitioning from the national court to the UPC?
I would say drafting orders and decisions.
First, the decisions are drafted in a different language. I had never worked in English before, and although I felt confident in my English when I joined the UPC, I quickly realised that drafting decisions was more difficult than I had expected. Formulating complex arguments in another language was quite challenging at the beginning, and it still can be at times.
A second aspect concerns the structure of decisions, particularly the strict separation between the factual findings and the application of the law. There is a strong procedural culture (based on legal interpretation) in Portuguese courts that emphasises clearly distinguishing between what constitutes a fact and what is a legal assessment or conclusion. Also, there must be a strict separation between the facts and the evidence on which they are based. This also affects the decision's format. At the national level, judges are required to include a section explaining, in a clear and logical way, why each fact is considered proven or not proven. And as an appeal judge in Portugal, I am very used to analysing whether the court of first instance correctly assessed the evidence, as this is often a central ground of appeal. So, this is often in my mind, and somewhat difficult to abandon at the UPC, with a less formalistic approach in that regard.
How do you see the “technical-legal” composition of the UPC panels contributing to better-informed decisions and what challenges remain?
As I mentioned earlier, the presence of the technical judge is highly positive.
There are challenges, of course. We deal with technical judges from different backgrounds. And this is often evident even in the way they approach issues. Although the perspective is always technical, I’ve noticed that some judges present technical issues in a more argumentative format, following a pattern more in line with the decision-making process, and similar to the reasoning typically found in decisions, while others present only the technical view of the issue in a very straightforward manner.
Both perspectives and formats are very enriching.
What procedural developments or jurisprudential trends do you believe practitioners should pay closest attention to going forward?
We have repeatedly seen requests to stay the effect of a decision/order of the Court of First Instance being denied by the Court of Appeal.
It is very important that practitioners identify whether the grounds presented for suspension fall within the scope defined by the Court of Appeal.
And, even if the grounds are within that scope, it is essential that the court deciding on the suspension has a clear view that it is so. In that regard, arguments should be very clear and succinct. If the court needs a long time to read and interpret a request for suspension, it is unlikely to be convinced that this is a clear and obvious case for suspension.
What’s one small UPC moment — a case, a conversation, a courtroom insight — that made you think, “Yes, this is history in the making”?
I would say that nearly every moment has been significant in this regard. There is a clear distinction between a “before UPC” and an “after UPC.”
For instance, when I took the oath in Paris, I never imagined I would one day be sworn in as a judge in a French courthouse.
Similarly, my appointment as a Judge Rapporteur in another Local Division was something I had never considered before the UPC, and this experience particularly illustrates how different legal cultures converge to achieve the best possible outcome.
From a broader, “making history” perspective, I would highlight the Court’s efficiency. I truly believe this is historic. Preparing a case for hearing and decision in approximately one year is unprecedented. I am not aware of any national system where complex patent cases are brought to a final hearing so quickly.
Of course, the Court has been specifically designed to achieve this level of efficiency. Nevertheless, it represents a significant milestone, and I hope it sets a standard for all stakeholders to follow.
