UPC: Farewell, Paper-Based Communication – IT Interoperability Is Now At Stake

European Interoperability Framework

While nowadays most of the initial filings with the European Patent Office (EPO) or with the Office for Harmonisation in the Internal Market (OHIM) are made via electronic means, a lot of other communication between the respective Office and the applicants or their representatives usually still is dealt with by paper-based means. For example, the EPO sends an awful amount of registered letters every day, and the OHIM mainly uses telefax for sending out Official communications and for receiving responses thereto.

In this context it should be noted that the new Unified Patent Court will be the first major European institution in the field of IP which adopts a policy solely allowing electronic communication, effectively banning all paper-based backdoors. Article 44 of the Agreement on a Unified Patent Court stipulates:

ARTICLE 44

Electronic procedures

The Court shall make best use of electronic procedures, such as the electronic filing of submissions of the parties and stating of evidence in electronic form, as well as video conferencing, in accordance with the Rules of Procedure.

In the 14th Preliminary set of provisions for the Rules of procedure of the Unified Patent Court this matter is picked up by Rule 4, reading as follows:

Rule 4 – Lodging of documents

Written pleadings and other documents shall be lodged at the Registry in electronic form. Parties shall make use of the offcial forms available on-line.

“Written pleadings and other documents shall be lodged at the Registry in electronic form” – no exceptions allowed. At first we note that the internal competence for dealing with filings appears to lie with the Registry of the Court. As a second point, there will be “offcial forms” for each and every potential filing which must be usted and, after being filled in, filed electronically.

Moreover, throughout the full text of the Draft Rules of Procedure there are 25 mentions of “electronic address” of the Court and/or parties involved.

Neither those above-mentioned “official forms” nor the “electronic addresses” are explained in any technical detail within the Draft of the Rules of Procedure.

Closely related to these on-line issues are telephone and video conferences as indicated in Rule 105. There is no Rule defining applicable technologies for such purposes.

When discussing this matter, it might be worth to explicitly mention that it makes sense to adopt a policy for electronic communication when creating a new Court system. In terms of costs and efficiency, it is high time to depart from traditional paper-based structures. And, as a second point, it surely would not be wise to give detailed technical definitions of particular technical means within a high-level legal text because of changes of technical means in the course of progress might otherwise cause frequent changes thereof.

However, someone needs to be in charge of defining technical details of the electronic IT communication interfaces to be supported and requited by the Court. Theoretically, there might be two points within the new Court dealing with this matter:

• The Administrative Committee defined in Article 12 of the Agreement: Nowhere within the Agreement the Administrative Committee is charged with defining technical details of the electronic communication infrastructure to be set up by the Court.
• The Registrar is to be appointed in accordance with Article 10 Para. 1 to manage the Registry. Furthermore, Article 10 Para (4) stipulates that the Registrar is not only to be appointed by the Court but the Court is also required to lay down the rules governing the Registra’s service.

Hence, I think it is safe to conclude that the model behind the present 14th Draft of the preliminary set of provisions for the Rules of procedure of the Unified Patent Court essentially says that the technical details of the IT infrastructure of the Court including the external communication interfaces are to be determined by the Registrar closely guided by the Presidium of the Court (see Article 24 Para. (1) of the Statute of the Unified Patent Court). Article 15 of the Statute definis the composition of the Presidium as follows:

Presidium

(1) The Presidium shall be composed of the President of the Court of Appeal, who shall act as chairperson, the President of the Court of First Instance, two judges of the Court of Appeal elected from among their number, three judges of the Court of First Instance who are full-time judges of the Court elected from among their number, and the Registrar as a non-voting member.

Therefore, is likely that the outlines of the technical details of the IT infrastructure of the Court including the requirements of the external communication interfaces will be set by a body essentially consisting of judges of the Court. It should be noted that according to Article 14 of the Agreement, the Advisory Committee will have no influence so far.

In general, it appears to be a natural tendency of large organisations run by a state or by a group of states to try to resolve their own problems when defining technical particulars of their IT infrastructure including external communication interfaces. Insiders of such organisations my not have in view needs and/or constraints of those external people who need to communicate with the organisation on the basis of certain standards. Of course, these problems are not new. The general technical term describing this requirement is interoperability:

Interoperability is the ability of diverse systems and organizations to work together (inter-operate). The term is often used in a technical systems engineering sense, or alternatively in a broad sense, taking into account social, political, and organizational factors that impact system to system performance.

While interoperability was initially defined for IT systems or services and only allows for information to be exchanged (see definition below), a more generic definition could be this one:

“Interoperability is a property of a product or system, whose interfaces are completely understood, to work with other products or systems, present or future, without any restricted access or implementation.”

On the level of EU such problems have been addressed by the European Interoperability Framework for Pan-European eGovernment Services V. 1.0 dated 2004:

The objectives of the European Interoperability Framework (EIF) are:

• To support the European Union’s strategy of providing user-centred eServices by facilitating the interoperability of services and systems between public administrations, as well as between administrations and the public (citizens and enterprises), at a pan-European level.
• To supplement national interoperability frameworks in areas that cannot be adequately addressed by a purely national approach.
• To help achieve interoperability both within and across different policy areas, notably in the context of the IDABC programme and any other relevant Community programmes and initiatives.

One of the major recommendations promoted by the EIF reads as follows:

RECOMMENDATION 2:

The following principles, of a general nature, should be considered for any eGovernment services to be set up at a pan-European level:

• Accessibility
• Multilingualism
• Security
• Privacy
• Subsidiarity
• Use of Open Standards
• Assess the benefits of Open Source Software
• Use of Multilateral Solutions

In 2006, the European Commission has started the revision of the European Interoperability Framework (EIF) and the Architecture Guidelines (AG); for details see here. Results can be found there.

I don’t think that it would be wise to let the Presidium of the Unified Patent Court decide alone and based only on their own findings how to define the external IT interfaces for plaintiffs, defendants and their representatives. I am afraid they are neither skilled with regard to problems of interoperability in various IT architectures nor will they see any incentives in forming IT structures that are not only functional for fostering the internal efficiency of the Court but also fair with regard to the burden imposed on the parties and their representatives by obligatory requiring their utilisation.

Therefore, I think it might be useful to add another Rule to the Rules of Procedure indicating some abstract but binding guidelines which must be taken into consideration by the Presidium when actually setting rules for on-line business with the Court. Details remain to be considered but I think that Recommendation 2 from EIF V. 1.0 as quoted above might be a good starting point. Providing such guidelines within the legal framework might be of help for the Presidium when taking in expert advice from outside.

In particular, standards are key to interoperability as expressis verbis stated in the Draft Document for EIF 2.0. In the EU strategy for Growth and Jobs, strong and dynamic standardisation has been identified as one of the key instruments to foster innovation. Standardisation has a dimension of public interest, in particular whenever issues of safety, health, environment and performance are at stake, we can read there. The conclusion drawn there surely is applicable also with regard to the IT system of the Unified Patent Court:

Public administrations and European Institutions such as the European Commission should actively support efforts at eliminating the use of proprietary standards and solutions within public administrations by actively supporting and participating in standardization efforts, particularly by formulating and communicating needs and requirements, according to the new approach.

In this context please refer also to Neelie Kroes’ Address at Open Forum Europe 2010 Summit: ‘Openness at the heart of the EU Digital Agenda’ Brussels, 10th June 2010. Ms Kroes is European Commission Vice-President for the Digital Agenda.

Furthermore, an extension of the competences of the Advisory Council might be considered, tasking this body also with proposing adequate policies for ensuring interoperability between the IT of the Court, on the one hand, and the IT of its users, on the other hand.