Brussels, 16th November 2022 — Nokia and Airbus got their patent lawyers elected as part-time technical judges at the forthcoming Unified Patent Court (UPC). Europe is witnessing corporate capture of its Justice system. Being ‘judges’ in the morning and ‘ patent lawyers’ in the afternoon. The Unified Patent Court is way worse than the appointment of judges in Poland.
Technical judges are part-time judges (half judge, half employee of a private company) without a law degree, and are usually patent attorneys working for law firms, or inside patent departments of large corporations (Nokia, Airbus, 3M, Orange, Agfa, etc…).
Benjamin Henrion, president of FFII, call for their immediate removal:
“Nokia as part time judge at the Unified Patent Court, this is a joke right? Europe is witnessing corporate capture of its Justice system. This is a frontal attack on the independence of the judge, and judges should not receive any side salary. This is worse than the case of Polish judges.”
Nokia has been very active a patent troll company, and is eager to influence the Unified Patent Court validating software patents in Europe, without any possible involvement of the European Court of Justice.
In the history of the project, there were rules forbidding this corporate capture of Judges in the failed European Patent Litigation Agreement (EPLA) project in 2004, banning any side remunerated activity:
CHAPTER I JUDGES – Article 6 Incompatibility of other functions
(1) Apart from being members of other courts orboards of appeal of the European Patent Office or national patent offices, judges of the European Patent Court shall not pursue any gainful occupation unless authorised by the Executive Committee. Nor shall they occupy any political or administrative office.
— Draft Statute of the European Patent Court, Working Party on Litigation, 16.2.2004 https://www.uaipit.com/uploads/legislacion/files/1259753423_3_EPLA-20040216-Draft_Statute_of_EPCourt.pdf
There is also jurisprudence (Grosam Vs Czech Republic) at the European Court of Human Rights (ECHR) in Strasbourg on violation of Art6(1) with side remuneration of judges:
(iii) The existence of guarantees against outside pressure
134. As concerns the existence of guarantees against outside pressure, the Court observes that two-thirds of the chamber’s members, the lay assessors, worked and received their salaries outside, which inevitably involved their material, hierarchical and administrative dependence on their primary employers and thereby could endangered both their independence and impartiality (see Oleksandr Volkov, cited above, €§ 113).
— Grosam Vs Czech Republic, European Court of Human Rights, 2022 https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-217806%22]}
Countries participating in the Unified Patent Court Agreement (UPCA) seem to wilfully ignore those rules, and some politicians want the Agreement to enter into force at any cost.