A View from the UPC

Tobias Pichlmaier, Presiding Judge at the Munich Higher Regional Court and part time judge at Munich Division of the Unified Patent Court

Born in Munich, Tobias Pichlmaier joined the Bavarian judiciary on 1 August 2000. From 2005 to 2012, he was a judge at the Regional Court of Munich I, assigned to various special chambers for the protection of intellectual property. With effect from 1 August 2012, he was appointed as a judge at the Munich Higher Regional Court and assigned to a senate for industrial property protection. From 2016 and until 31 May 2023, he was Presiding Judge at the Regional Court Munich I, where he presided inter alia one of the chambers specialized in patent litigation. Since 1 June 2023, Tobias Pichlmaier serves as a part time judge at the Munich Local Division of the Unified Patent Court. He also serves as a Presiding Judge at the Munich Higher Regional Court. We talked to him on August 1, 2023. 

EPLP: How has your everyday working life changed in connection with the UPC? 
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My daily work routine has changed considerably since the first of June. Taking on the 50 % part time job for the UPC meant that I also changed into a new position in the Munich courts. The previous job at the Munich I Regional Court could only be done at full time – all or nothing, so to speak. So, in a way, everything was new. And whenever something is new and the old routines no longer work, it naturally takes some time until things work as desired. This is even more true for my work at the UPC than for my move to the Munich Higher Regional Court. The organisational structures and the technical environment in which we judges work have not yet been tested at the UPC. 

Of course, I understand that not all judges were able to start at full time at the beginning. From the point of view of the UPC, it would certainly be good if the Court could soon run at full capacity, although from the judges’ point of view there is nothing to be said against part-time work as a UPC judge. 

EPLP: From your point of view, how did the start of the new court system go? 

Very favourably worded, one can say that the start was a bit bumpy. That in itself is not entirely surprising since we at the UPC – as I said – are working in completely new organisational and technical structures that have neither been tried and tested nor can they be familiar. The fact that not everything would run smoothly at the beginning could actually be seen already during the sunrise period before 1 June, when the CMS sometimes had considerable capacity problems. In the first weeks after 1 June, a lot of improvisation had to be done; this often only worked because the lawyers involved were well-intentioned and compensated for the system-side deficiencies, especially of the CMS, by acting pragmatically and with a lot of patience. 

As far as we had some delays in service in the initial period we got rid of these difficulties through training of the staff and the judges. This is important, because before the UPC especially the service should go quickly. It is of no use if the proceedings take 12 months from service if the service itself takes several months. 

EPLP: How do you assess the number of cases received in Munich and in other locations? 

The most exciting question in the run-up to the UPC launch for me as a judge was whether we here in the Munich Local Division would actually have anything to do when it started. As we now know, that was the case – and we are happy about that. In addition to main proceedings, applications for interim measures have also been received, so that the first oral hearings will already take place this year. As of today, we have 17 proceedings. Included are 3 urgent proceedings.Overall, the number of proceedings at the UPC is still manageable; I think this is because plaintiffs first want to test the new court and see its performance. 

EPLP: What differences have you observed already compared to the previous German patent litigation?
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The differences to German patent litigation will become apparent above all in main proceedings when the German principle of separation does not apply and infringement and validity of the patent can be decided at the same time. I see few differences between the written pleadings at the UPC and in German cases. This may be due to the fact that only German lawyers have filed lawsuits in the Munich Local Division. It will certainly be exciting to see actions filed by French lawyers, for example. But we have not had that yet. 

Also, in injunction proceedings we will be able to see differences in the treatment of the cases. We will decide on the first applications together with a technical judge – on our initiative. If possible, we will always involve technical judges, especially in injunction proceedings. In the German injunction procedure, it was problematic that the technical expertise of the judges is limited. Now, we can call in technically qualified judges, who will ensure a better understanding, which will be useful both for validity and infringement questions. 

The assignment of the technical judge in the injunction proceedings actually took a little longer, about two to three weeks. This was related to the fact that possible of interest had to be excluded. The technical judge is chosen by the president of the first instance, Mme Butin, we only informed her about the technical field concerned. 

In my view, these are true and innovative changes compared to the German patent litigation procedure. 

EPLP: How do you assess the performance of the UPC CMS?
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The UPC CMS is unfortunately not an overly pleasant topic. My impression is that all users – including the judges – had higher expectations of the system, its user-friendliness and performance. I hope that substantial improvements can be made. Work is being done at full speed, but we should not expect miracles in the short term. For example, the first preliminary injunction proceedings had to be filed in paper because the CMS could not process the applications. Filing in paper is obviously not what one wanted to achieve with the CMS. In addition, the system did not provide the option of filing an action on behalf of more than one plaintiff. Overall, the system is a bit cumbersome and not ideal. Hopefully we will get rid of these difficulties, which we currently face. 

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