Inspired by this discussion of our recent posting on the latest draft UPC rules of procedure it appears to be high time to have a closer look into Article 48 UPC and related Rule 286 RoP in order to possibly figure out the legislator’s idea of representation rights.

As European and German patent attorneys we still remember the recommendation of the 2006 Venice Patent Judges Symposium according to which only “attorneys-at-law who are fully entitled to represent parties in ordinary civil proceedings in the courts of first instance of the convention states” should be authorised to represent cases before the UPC  (see Venice II resolution, page 11, item 5). Later, at the peak of the lobbying battle for representation rights (see e.g. here and here) also the European Parliament’s JURI Committee and its influential rapporteur Klaus-Peter Lehne, an attorney-at-law and partner of international law firm Taylor Wessing, urged it is of “utmost importance” that

the parties should be represented only by lawyers authorised to practise before a court of a Contracting Member State; the representatives of the parties might be assisted by patent attorneys who should be allowed to speak at hearings before the Court [2011/2176 (INI)]

Different voices came from industry organisations, patent practitioners and academia, who raised for  good reasons (see here, here, here) that European Patent Attorneys should be authorised to represent their clients before the UPC as well.

Before this background, Article 48 UPCA can be understood as an acceptable compromise:

(1)  Parties shall be represented by lawyers authorised to practise before a court of a Contracting Member State.

(2)  Parties may alternatively be represented by European Patent Attorneys who are entitled to act as professional representatives before the European Patent Office pursuant to Article 134 of the EPC and who have appropriate qualifications such as a European Patent Litigation Certificate.

(3)  The requirements for qualifications pursuant to paragraph 2 shall be established by the Administrative Committee. A list of European Patent Attorneys entitled to represent parties before the Court shall be kept by the Registrar.

(4) … (7)

According to this provision, basically three groups of professionals are authorised to independently represent cases before the UPC, namely

1. Lawyers,
2. European Patent Attorneys having the European Patent Litigation Certificate, and
3. European Patent Attorneys having an appropriate qualification.

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