Applicant v. Registrar of the Unified Patent Court (UPC_CoA_364/2024, UPC_CoA_393/2024)

On May 27, 2024, the applicant applied for registration in the list of representatives before the Unified Patent Court (Einheitliches Patentgericht, UPC), claiming to meet the requirements of Article 48(2) of the Agreement on a Unified Patent Court (EPGÜ). He submitted evidence of having passed the European qualifying examination and being listed as a representative before the European Patent Office, along with documentation showing his admission as a German patent attorney (Patentanwalt). He completed the so-called 'Münchner Jahr' from June 1, 1997 to May 30, 1998, and passed the written and oral examinations in June and July 1998. He argued that the training content of the 'Münchner Jahr' during this period was equivalent to the course 'Recht für Patentanwältinnen und Patentanwälte' at Fernuniversität Hagen, which is listed under Rule 12.1(a)(ii) of the EPLC Rules as an acceptable qualification during the transitional period.

On June 4, 2024, the Registrar of the UPC rejected the application, reasoning that no course or certificate other than those explicitly listed in Rule 12.1(a) of the EPLC Rules could be recognized as an alternative qualification. The applicant filed a review request, which the Registrar (represented by the Deputy Registrar) declined to remedy on July 23, 2024, maintaining that the list of courses and certificates in Rule 12.1(a)(ii) is exhaustive and that equivalent programs cannot be recognized.

In his submission dated August 5, 2024, the applicant argued that the narrow interpretation of Rule 12.1(a) failed to consider its normative purpose, fundamental rights regarding freedom of profession and freedom to provide services under Articles 56-62 TFEU, and the principle of equality. He contended that the training content integrated into the 'Münchner Jahr' was continued as a separate study program 'Recht für Patentanwälte und Patentanwältinnen' from 1999 onwards, and that it would be mere formalism not to recognize his training.

The President of the Court of Appeal, Klaus Grabinski, issued the order on August 22, 2024, finding the review application admissible but unfounded. The court held that while the applicant had demonstrated his authorization to act as a representative before the European Patent Office, he had not provided proof of the additional qualification required under Article 48(2) EPGÜ, such as a certificate for conducting European patent litigation. The EPLC Rules of February 22, 2022, issued by the Administrative Committee, conclusively determine the requirements for such qualifications. The applicant relied solely on Rule 12.1(a)(ii), which allows proof of qualification during a one-year transitional period through successful completion of either the 'Recht für Patentanwältinnen und Patentanwälte' course at Fernuniversität Hagen or the 'Kandidatenkurs Fischbachau.'

The court found that the applicant had not proven successful completion of either of these specifically listed courses. Even considering his argument that the content of the 'Münchner Jahr' was equivalent, the court held that the purpose of the EPLC Rules is to conclusively determine the requirements for obtaining the certificate, as reflected in their title and reference to Article 48(2) EPGÜ. The court rejected the applicant's constitutional arguments, finding that even assuming an interference with freedom of profession under Article 15 of the EU Charter of Fundamental Rights or freedom to provide services under Article 56 et seq. TFEU, the restriction was justified by the need for qualified representation before the UPC. The EPLC Rules, adopted by the Administrative Committee in which all contracting member states are represented pursuant to Article 12 EPGÜ, conclusively regulate the detailed requirements. The court also found no substantiated violation of the principle of equality, as the applicant, unlike registered representatives, had not demonstrated completion of a listed course or certificate. The court noted that the applicant still has the possibility to obtain the certificate or a law diploma under Rule 11 EPLC Rules to demonstrate his qualification. An oral hearing was not required as it is not provided for in the EPLC Rules, and the applicant had been given multiple opportunities for written submissions. The review application was therefore rejected as unfounded.