UPC Court of Appeal recognises representation rights of in-house counsel

The Court of Appeal of the Unified Patent Court has ruled that there should not be a blanket ban on in-house counsel representing their employers before the court.

The Court took the view that, since self-representation is not permitted under the UPC, this bar extends to companies being represented by those who control them.

But it makes it clear that, unless they are in such a position, representatives (including patent attorneys) may be employed by the company for which they are acting before the UPC. The decision is in line with the position adopted by CIPA in its recent open letter to the CoA.

The judges stated in their decision: “The independent exercise of the duties of a representative is not undermined by the mere fact that the lawyer or the European patent attorney, qualified as a representative under Art. 48(1) or (2) UPCA, is employed by the party he or she represents.”

President Bobby Mukherjee said:  “We are pleased to see that the Court of Appeal of the UPC has taken a sensible approach to the in-house representation issue.

“The Court has acknowledged that whilst there are some situations where a representative is conflicted from acting independently, this is clearly not the case for most employed representatives. CIPA is glad that the Court’s decision has reflected the position as set out in our recent open letter.”

The Court’s full decision is published here.

Date published: 12 February 2025