Judicial system of Ukraine is often called one of the main factors that reduce the interest of foreign investors in the country. Not a high level of confidence in the servants of Themis have also ordinary Ukrainians.
In summer 2016, the judicial reform was launched for changing the situation. Court system and the principles of selection for judges of general jurisdiction courts were changed. Supreme Court was ‘reset’. Specialized courts were created to improve matters in the most problematic areas, fighting against corruption and infringement of intellectual property rights.
For years Ukraine is among the countries of the world where the rights to objects of intellectual property are most infringing. In April 2018, the USA even suspended the Generalized System of Preferences for 155 types of Ukrainian goods due to infringement of intellectual property rights. Since 2012, Ukraine has been on the Priority Watch List according to the Special 301 Report, prepared by the Office of the United States Trade Representative.
The practical process of creating a High Court of Intellectual Property began earlier than the Anti-Corruption Court. It is expected that the IP court in Ukraine would start operating in the second half of 2019. The Supreme Court of Anti-Corruption will start its activities probably before 2020.
Thus, Ukraine will join more than two dozen countries in the world in which specialized IP courts operate. In Europe, there are Austria, Belarus, Great Britain, Germany, Portugal, Russia, Turkey, Sweden, and Switzerland.
Ukrainian IP court will combine the first instance and appeal in cases involving intellectual property rights. The highest chamber will remain the Сhamber of the Economic Court of Cassation of the Supreme Court.
To date, the competition for places of judges continues. 63 candidates out of 148 people who came to the exam coped with the testing.
At first, the position was announced for 21 judges. But later the number was increased to 30, of which 9 are the number of judges of the Appeals Chamber of this court.
However, concerns remain that the real ‘quality’ of the new court will be too far from ideal.
The greatest concern is caused that dominant percentage of participation in the competition is acting judges and very wide jurisdiction of the new court.
Many judges who take part in the competition do not have practical experience in handling such specific cases as disputes regarding intellectual property rights.
Most of the contestants are active judges of local courts of general jurisdiction who have never considered economic or civil cases on IP objects.
The jurisdiction of the court will cover absolutely all disputes regarding IP objects.
For example, the Federal Patent Court of Germany has about 120 judges. Of these, more than half have higher education in the natural sciences or in the field of technology and are ‘technically’ prepared. These judges have a clear specialization and sit on 27 boards (Senates) – trademark and plant varieties matters are considered by different judges.
26 judges have the Federal Patent Court of Switzerland. However, the population of Switzerland is 8.5 million people. Ukraine – about 40 million. Germany – about 90 million.
Therefore, based on the experience of other European countries, 30 judges, without clear divisions by specialization, will not be enough for the court to work effectively.
At the same time, level of competition in 10 candidates for 1 vacant seat in the High Court on Intellectual Property gives hope that there will be selected the most highly qualified specialists who will be able to quickly master the features of legal proceedings in the field of protection of intellectual property rights.
Reducing the average number of cases per judge should also improve the level of ‘getting buried in details’ of the future judges of IP court.
In Ukraine, there are not so many cases on patent disputes and other disputes regarding IP rights – an average of about two hundred disputes per year.
It turns out about 29 cases per year on average per board of judges of the first instance. It is hard to call a huge workload.
But, earlier many disputes were considered at the level of the Chamber of the Ministry of Economy and the Antimonopoly Committee.
In addition, understanding the time frame for the trial and the low confidence in the judicial system as a whole, many companies and individuals rejected the idea of suing.
If the speed and quality of consideration of cases by IP court increase, it would be a trigger for the flood of intellectual property cases that have accumulated over previous years. And those who have either tried to negotiate or closed eyes to infringements will go to court seeking justice.
For example, the German IP court in 2016 received more than 1.6 thousand new cases for consideration, in 2017 – more than 1.5 thousand.
Another uncertainty factor is a change in the intellectual property legislation on the way to unification with the norms of the European Union. Therefore, the formation of judicial practice will be the first task of the Ukrainian IP-court.
As we see, IP court brings up more questions than answers. Only one thing is clear – the start of IP court operating will be a turning point for the entire IPR sector in Ukraine.
Will the business begin to use more actively all possible tools to protect their rights? Will this lead to an improvement in the investment climate in the country? How it will change the landscape of the IP legal services market? With what tonality will be written about the Ukrainian IP court in the scientific literature through the years?
We will find out some of the answers in the coming months.
Elena Polosmak, Crane IP Law Firm Managing Partner