Friday 19 February 2016

Mediation Rules of the UPC Patent Mediation and Arbitration Centre

Permanent Arbitration Tribunal The Hague 1899
The Mediation Rules of the Patent Mediation and Arbitration Centre annexed to the UPC have now been published by the Preparatory Committee here.

There have been some doubts whether parties seeking mediation service would be inclined to travel to Lisbon or Ljubliana for this purpose rather than staying in their comfort zone in Paris, London or Munich. Art. 9 of the Rules now leave a broad choice to the parties. The parties and the mediator might even decide to enjoy a retreat in the Caribbean and this blogger is sure that this would help finding a friendly settlement.

One of the many benefits of mediation besides of the confidentiality is the broader and more flexible scope. According to Art. 35 (2) of the UPC agreement, the facilities shall be provided for mediation and arbitration of patent disputes falling within the scope of this Agreement, i.e. subject-matter for which the UPC has exclusive jurisdiction. Parties might want to settle other issues as well (say trademark rights or the right to custody of a commonly owned dog). The rules can be broadly interpreted in this regard. Art. 2 No. 1 of the Mediation Rules say that the services are offered for disputes relating to European patents and European patents with unitary effects for which the Unified Patent Court (UPC) is exclusively competent (Article 32 UPC Agreement).  In other words, any relation to a patent under the UPC competence is sufficient.

Art. 3 2. c) of the rules stipulates that the request for mediation shall contain a succinct summary of the facts giving rise to the dispute including an indication of the intellectual property rights involved. This can be interpreted as meaning that the dispute may involve intellectual property rights other than the patent under the UPC competence but does not limit the competence of the Mediation Centre to intellectual property rights. The right to custody of a commonly owned dog may well be treated.

Would the mediation be available for these issues as well and would the terms of such a settlement be enforcible under Art. 82 UPC and Rule 11.2 of the UPC rules of Procedure? The answer should be yes. Art. 11.2 of the UPC Rules of Procedure applies to the terms of any settlement and is not limited to subject-matter under the jurisdiction of the UPC.

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