Joff Wild

Those of us in Europe tend to think of the EU patent and unitary patent court (UPC) as European issues; framed, as they have been , in terms of making life simpler and cheaper for applicants and patent owners from the EU, especially SMEs (though whether that will actually be the case, of course, is an entirely different matter). However, the reality is that what is being formulated will, in fact, have a major global impact and will represent the most significant change to the world’s patent system that we have seen for a long, long time.

I am currently in Boston doing a final site visit ahead of next month’s IP Business Congress. Between walk arounds of the venue and menu tastings (it’s a tough job, but someone has got to do it …) I have had a few meetings with IP partners at some of the big law firms in the city: their verdict on the patent and court is unanimous; we are talking about game-changers here, to the extent that some believe the centre of gravity for global patent litigation will move eastwards from the US to sit somewhere in the mid-Atlantic. Think of it this way: in as little as a couple of years from now it may be possible to get just two injunctions that will effectively remove an infringing competitor from a pair of markets with a combined population of well over 800 million, within which are a high percentage of the world’s wealthiest consumers and companies. For a plaintiff that is an appealing prospect; for a defendant it is terrifying. For US law firms, it may well be a huge opportunity.

American applicants file for more patents at the European Patent Office than those from any other country. There is every reason to believe that, just as they have been with the Community trademark since it was established in the mid-1990s, they will be the biggest users of the new unified EU patent. Right now, if US entities want to assert the patents they get from the EPO they have to do it on a country by country basis; with the EU patent that will no longer be the case. All of a sudden, just as in the States, one suit will do the trick. And one suit equals one law firm; not the ones in Germany, the UK, France and elsewhere that have to be employed now.  That is good news for American patent owners; it is also an exciting proposition for their US legal advisers.

As patent disputes internationalise, a well-staffed office in just one European location could be very handily placed to do work that up to now has had to be outsourced to EU-based firms. When the new system arrives, a few strategic hires, an acquisition or two, and hey presto when it comes to litigating the EU patent a US firm could be a match for any one of Europe’s established players – especially as the majority of cases are likely to be heard in English. If a US firm has the chance to offer its big American (and Asian and European, of course) clients a high-quality, one-stop litigation shop around the world, with all the potential cost and time savings that implies for them, then it is surely going to attempt to do so, isn’t it? And with decent-sized London and Shanghai/Beijing offices, combined with what is already established at home, such firms will have a good story to tell.

All of the above is, of course, jumping the gun somewhat. But what I can say with a fair amount of certainty is that many of the big US patent litigation firms are now fielding a lot of calls from clients wanting to know all they can about what Europe’s new system is going to mean for them. Yesterday, for example, I met with a number of partners at Ropes & Gray and even though nothing is yet finalised about the EU patent and the UPC it is clear they have been doing a lot of thinking about everything from filing to litigation strategy. What is happening in Europe is at the top of their clients’ minds, they told me. And though they did not say anything about expanding in the EU, they did share one interesting piece of information with me: four the firm’s senior, US-based attorneys (three partners and an of counsel) have already passed exams to qualify as English solicitors so that they can offer formal advice on the new system; others – including joint head of IP litigation Richard McCaulley and star trial lawyer Dalila Argaez Wendlandt – are preparing to do so. And if it is happening at Ropes, the chances are that the same is being done elsewhere too. These very busy, highly remunerated partners at the US’s top IP firms are not going back to school for the fun of it, that is for sure.