“Die Parteien werden von Anwälten vertreten, die bei einem Gericht eines Vertragsmitgliedstaats zugelassen sind.”

Since the term “lawyers” is not translated as “Rechtsanwälte”, but generally as “Anwälte” in the agreement it would seem strange to deny German Patent Attorneys the right to represent clients.

German Patent Attorneys are entitled to refer to themselves as “Patentanwälte”, and are also entitled to represent clients before a court, namely the Federal Patent Court, the Federal Court of Justice and in a restricted manner in proceedings before the district courts (§4(3) PAO).

Please note that the Agreement will be equally authentic in its English, German or French version (Art.88(1) UPC).

But: What is the general meaning of the term “jurist” in the British English “legalese” language? Merriam-Webster says:

http://www.merriam-webster.com/dictionary/jurist

“one having a thorough knowledge of law; especially : judge”

Apparently that doesn’t help that much here.

If a UK native speaker reads this posting: I should be obliged if you could post another comment explaining the meaning of “jurist” in legal English.

I totally agree that the term “lawyer” has to be translated as “Rechtsanwälte”.

Thus, obviously, patent attorneys are ruled out by the first sentence of Rule 286:

“A representative pursuant to Aricle 48(1) of the Agreement shall lodge at the Registry a certificate that he is a lawyer authorised to practise before a court of a Contracting Member State.”

However, the second sentence of Rule 286 stipulates what can also be understood as a “lawyer”, i.e. what goes beyond this ordinary understanding of the word “lawyer” (Russel called this “other lawyers”):

“Lawyers… are also jurists authorised to practice in patent related matters before a court in a Contracting Member State…”

As Russel indicated, in this sentence the understanding of the word “jurist” may be important. One could say that the second sentence of Rule 286 defines three conditions to be fulfilled in order to be called a “lawyer” (“other lawyer” beyond the ordinary understanding), namely that the individual concerned:

1) shall be a jurist;
2) shall be authorised to practice in patent related matters;
3) before a court in a Contracting Member State

According to my understanding, German and at least some British patent attorneys (having one of the certificates) fulfill requirements 2) and 3). The questions to be answered then is, who or what is a jurist?

Is an individual having an LL.M. degree a jurist or not?

The legal services act 2007 lists UK registered patent attorneys as “other lawyers” and in certain sections includes them under the definition of “relevant lawyer”. Their regulator IPReg refers to the UK patent attorneys as lawyers.

Under UK law then UK registered patent attorneys (rather than European patent attorneys ) appear to be lawyers.

The definition of lawyer under DIRECTIVE 98/5/EC that is given for the UK is advocate, barrister or solicitor though I don’t know why that definition would be the one used.

I believe it is no longer the case that British patent attorneys automatically have rights before the PCC. Instead they now need one of three certificates- the “Intellectual Property Litigation Certificate”, the “Higher Courts Litigation Certificate” or the “Higher Courts Advocacy Certificate”, albeit all existing UK attorneys have been grandfathered the first one of those.

I assume no-one yet knows whether all or none of those three certificates would qualify an EPA under Art 48(2) but would be interested to hear people’s thoughts.

I don’t know if the word “jurist” really helps resolve whether UK patent attorneys qualify as lawyers under Art 48(1). If it was held to mean only individuals with a law degree that would exclude most but still include a minority of patent attorneys (patent attorney litigators typically have an LLM).

A UK patent attorney with the Higher Courts Advocacy Certificate has right of audience and right to conduct litigation at the Supreme Court giving them more rights than both a normal solicitor and a normal Barrister. Its hard to imagine someone in that situation has not passed their EQEs but if they had not and they were held not to be a “lawyer” then it would seem very odd that they would be excluded from the Unified Court.

“Representation in proceedings established by this Convention may also be undertaken, in the same way as by a professional representative, by any legal practitioner qualified in a Contracting State and having his place of business in that State, to the extent that he is entitled in that State to act as a professional representative in patent matters. [...]”

“legal practitioner” is translated there with “Rechtsanwalt”.

Hence, in practice patent attorneys have to pass the EQE whereas “Rechtsanwälte” do not.

I think that the term “lawyers” in Article 48 (1) must also be properly translasted as “Rechtsanwälte”.

There is little hope that the Court might judge some day that a humble German patent attorney falls into the category of “lawyer”.

“Lawyers… are also jurists authorised to practice in patent related matters before a court in a Contracting Member State”

I can neither find the wording “infringement matters” nor the wording “disctrict courts” in Rule 286. All I can find are the terms “patent related matters” and “courts”.

According to my understanding nullity proceedings are “patent related matters”. Further, the German Federal Patent Court and the Federal Court of Justice are “courts”.

Of course, we should still read the requirements of the famous European Patent Litigation Certificate…