Anyone who has been attending an oral proceeding at the EPO, either as an observer or as an active party knows what it’s like. You need to think fast and stay on your toes, and watch your language because every issue, often starting with added subject matter, is taken to a decision immediately. The proceedings may thus end much quicker than what you have prepared for. In any case the opposition division or the Board of Appeal, will usually have pointed out at least their preliminary opinion in a written statement some time before the hearing, but this is an opinion with emphasis on preliminary.
Before the Swedish Court of Patent appeals the proceedings are very different. The parties are asked to present their whole case, mainly focusing on maybe a few aspects that the court sometimes presents at the beginning of the hearing. The decision is then delivered sometime around four weeks after the hearing. This means that the hearing itself may be more comfortable, but you are never sure if you have made your point across to the Court.
A while ago, I participated in a mock trial before a Unified Patent Court, during a course in patent litigation at the CEIPI in Strasbourg. The mock trial was led by a very well respected and experienced German judge. The oral hearing was very interactive, the panel of judges expressed the main issues that they wanted the parties to focus their pleadings on at the beginning of the hearing. The Court also asked the parties questions throughout the hearing. Being a European patent attorney before that panel of judges thus meant that the capabilities of thinking fast and adjusting to the situation came well into play. At the closing of the hearing the Court deliberated and they then gave their decision orally. The written decision will take another few weeks to deliver.
If this is the way that the UPC will work when it is up and running, nobody really knows. It may be that this will be up to the different divisions, and how the panel of judges at that particular Court is used to working and performing their hearings.
One thing that is certain is that the whole procedure before the UPC is supposed to be as efficient and quick as possible, including the oral hearings, which are meant to last not more than one day. I think we can expect that the judges therefore will be more interactive, more open with the main issues, but that the parties probably will be given an opportunity to present their whole case before a decision is taken.
Sofia Willquist, European Patent Attorney