We are now entering the home stretch, with the three final meetings of the UPC Preparatory Committee due to take place in April, May and June 2016, and the Court likely to open in Spring 2017 with a sunrise period starting later this year. Last month, the Preparatory Committee released a report of its latest meeting (24-25 February 2016) at which the IT team presented the latest iteration of the prototype case management system (CMS).
To say the CMS is important would be an understatement that obfuscates just how crucial it will be to the UPC’s success. It will be the conduit for communications between the parties and the court, the means by which documents will be filed and managed, and a window to the public providing the necessary transparency of process and decisions. The Preparatory Committee’s report states it is clear that the CMS is “on track” and that the UPC will have “a robust system”, but given its import it is worth delving into this.
The CMS faces a unique challenge in that it is being built for a court that does not exist. While there are rules of procedure, from which the court’s processes can be distilled, as all practitioners know there are nuances to the way rules are applied and interact with each other that are only drawn out from practice. Observing a court’s operation is the best way to develop and design an IT system, and a linked IT strategy, but that is not possible here.
The IT team’s answer to this has been a long-term interactive development process inviting feedback on a prototype CMS (based on an off-the-shelf product). This prolonged alpha/beta testing has been a way of drawing on the combined experience of lawyers and attorneys from across the EU; they can create and run ‘fake cases’ to test the system, and give feedback thereon. Provided that there has been sufficient interest, a group of experienced people with an interest in the UPC and its operation (as who else would volunteer) is the next best thing to observing the court in practice.
At a high level, the prototype CMS is certainly shaping up well. Each possible action is broken down into a series of logical steps, with the ability to upload documents (e.g. a pleading) where relevant. It is intuitive and modern, with some well thought out additions. A custom calendar, for example, displays the user’s key dates (relating to ongoing actions). When the CMS goes live, it is expected to be possible to synchronise this calendar with Outlook (or some other personal information manager software).
It is clear, however, that there are also a few specific issues still to be addressed, and several challenges of particular interest are set out below.
How will the new system handle the payment of fees?
The IT team is yet to implement the platform for the payment of fees, as it was awaiting the recent decision on what those would be, but it is expected to be a relatively standard online payment system. However, with the potentially significant fees involved, implementing, for example, a ‘pay by card’ system is impractical. Equally, it would be more 18th century than 21st century to have the majority of payments being made by cheque. Perhaps the UPC can learn from the UK HM Courts & Tribunals Service’s (relatively recent) move to a payment by account system, where a firm provides its reference number and then the court fees are automatically debited by bank transfer on a regular basis. The option to pay by card could remain for smaller payments, but since all cases should be conducted with professional representation, this is probably unnecessary.
How will confidentiality be handled?
At present, when uploading a document to the CMS a party can request that the document be designated as confidential. This request is then referred to a judge to evaluate the confidential nature of the document. If refused, then the document will be made available to the public unless the submitting party withdraws it. This obviously differs from the UK procedure, and one can see the inevitable arguments that are likely to arise. However, from an IT point of view, provided that ‘confidentiality clubs’ are implemented in the CMS then the management of confidential documents should prove relatively straightforward – the CMS currently offers, for example, search functionality that allows a user to search based on whether a document is confidential.
How practical will the opt-out process be?
The filing and processing of opt-out applications is likely to place a huge amount of pressure on the new CMS (this is no doubt one of the motivations for the sunrise period). Consequently, streamlining the process will be critical, in particular making it easy for applicants to manage applications in bulk. At present, the CMS falls distinctly short, although it is under review – currently one must search for the patent that one wishes to opt out, and then complete an (admittedly quite short) application for that single patent. The application is automatically populated to an extent, but using the information from the EPO’s register which will need to be carefully checked. It is not hard to see how those with large portfolios will find this approach highly time intensive and frustrating; clearly not what an IT system should achieve.
A “basket” function has recently been implemented, which allows the simultaneous submission of a number of opt out applications, but this was primarily to allow an applicant to pay for multiple opt-out applications at once – this is no longer required. The CMS is being expanded with developers to offer an application programming interface (API) so that third party software may interface with the CMS. This may allow a more streamlined bulk opt-out process, but we will need to see how the API develops.
Finally, there is also the interesting issue of capacity in that the CMS must be able to cope with the demands placed upon it and the underlying hardware. The opt-out process is likely to place a disproportionate load on the CMS early on (especially in the sunrise period), that may well not be repeated when the UPC is well established, and steps will need to be taken to ensure that additional initial load can be managed.
What IT security measures will there be?
Given the nature of the court, and its heavy dependence on the CMS, preventing fraud and ensuring the security of the IT infrastructure will be vital. Tests on its security have already been run, and certain user checks are in place (e.g. the need to receive and enter a code from a confirmation text message when registering), but security will need to be subject of ongoing review.
As the work of the UPC Preparatory Committee approaches its conclusion, the CMS is being handed over from the current IT team to the permanent IT team in Luxembourg (where the court’s Registry will be located). As this milestone comes, and then passes, the iterative development process will continue with feedback from volunteers leading to further fine-tuning and feature additions where needed. Ultimately, however, in the circumstances the true challenge is the same as for all software – while testing goes a certain distance, one cannot know with certainty how the CMS will perform until it goes live.