What has particularly got this moggy thinking today is the question of what judicial office might be open to a UK registered patent attorney. Readers will recall that he posted last week on the call for expressions of interest for technically and legally qualified judges. It seems fairly self-evident that a UK registered patent attorney could fulfil the requirements to be a technically qualified judge ("a university degree and proven expertise in a field of technology" according to Article 15(3) of the UPC Agreement, since the other requirements of Article 15 can apparently be met by training according to Article 2 (3) of the Statute of the UPC [the text of the Statute can be found following that of the Agreement, at the same link]).
But what about being a legally qualified judge?
The key requirement to be a legally qualified judge according to Article 15(2) of the UPC Agreement is that the candidate should possess "the qualifications required for appointment to judicial office in a Contracting Member State". The IPKat has received from a mammalian correspondent of a different species an argument that UK registered patent attorneys fulfil these requirements.
The Judicial Appointments Order 2008 in combination with Sections 50 and 51 of the Tribunals, Courts and Enforcement Act 2007 renders UK registered patent attorneys eligible for certain judicial and quasi-judicial office. Is sufficient to allow a UK patent attorney to be a legally qualified judge of the UPC? What do readers think?
Merpel wonders whether in any event there would be any desire among the UK patent attorney profession to become a legally qualified judge, or whether a UK patent attorney in any case would likely be more interested in being a technically qualified judge. She recalls from the IPKat's earlier post here that technically qualified judges have a wider range of other employment options open to them if they wish to work part time at the UPC.
Commentators on the earlier post have correctly pointed out that Art 149a(2)(a) EPC allows the Administrative Council of the European Patent Office to permit EPO Board of Appeal members to "serve on a European patent court". The IPKat recalls however that the type of court envisaged when this was inserted into the EPC 2000 would have included non-EU members of the EPC, quite different from what is now planned to occur. Presumably if the Administrative Council does decide to permit this, then BoA members will in general need to be (part time) technically qualified judges - if they seek to be (part time) legally qualified judges then they will additionally require individual dispensation from the Administrative Committee of the UPC according to Article 17(2) of the UPC Agreement.
Another question that this Kat has been mew-sing, which is perhaps a wider point, concerns rights of representation at the Unified Patent Court. It seems clear that a UK registered patent attorney is "authorised to practise before a court of a Contracting Member State" [the Patents County Court] as required by Article 48(1) of the UPC Agreement, and therefore that a UK registered patent attorney is a "lawyer" under the terms of the UPC Agreement. Therefore, UK registered patent attorneys should have the right to practise before the UPC without any further qualification. This Kat has, however, noticed that the rules in this respect (in particular rule 286 on evidence of the right to practice and rule 287 on privilege) seem to confuse the issue which is clear in the Agreement and employ definitions stemming from Swedish practice ("persons possessing a law degree (jurist) who are authorised by the Swedish Patent Attorneys Board or equivalent body in a Contracting Member State") which are not applicable to the UK. This Kat hopes that these issues will be sorted out in the next draft of the rules of procedure.