Six months after the UPC opens for business, patent leaders offer their verdicts
For the IP community – and several legal experts featured in this year’s IAM Global Leaders – the launch of the Unified Patent Court has been a divisive and controversial change to the European patent landscape.
The court became a reality in June 2023. UPC judges, comprising judges from the 17 participating EU member states, now have exclusive jurisdiction over the new unitary patents as well as classic European patents, meaning that decisions to invalidate will apply across all participating jurisdictions. One of the main arguments for the UPC is that it provides a forum that bypasses conflicting proceedings taking place across multiple jurisdictions, putting an end to costly parallel litigation.
Although the launch was intended to streamline processes and reduce costs across the region, some argue that the UPC exposes patent owners to more risks than it mitigates against.
A change for the better?
Whether you support or oppose the UPC, there is no denying that it is “a major game changer”, as described by Steven Lundberg of Schwegman Lundberg & Woessner. It is his view that the processes facilitated by the UPC will be “much more efficient and less expensive than US litigation”. Further, Lundberg maintains that the UPC is less vulnerable to being undercut by the “anti-patent policy leanings that currently hold sway over the US patent system”.
Dominik Ho, of df-mp, also champions the potential benefits of the UPC. He says that “access to a broader market” as well as “experienced judges that openly communicate their approaches to applying the new law” has given him and his clients confidence. While Ho accepts that others may hesitate to embrace the system, he is sure that more infringement cases will “find their way” to the UPC over the next year.
Further, bringing a case before the UPC as opposed to litigating domestically could have a positive impact on the outcome. Joel Nägerl of Zimmerman & Partner Patentanwalte says that the former puts increased pressure on defendants since they risk being “hit by an injunction across all UPC member states”. On the right side of such a litigation, this could work in favour of plaintiffs.
Yet despite the UPC’s intention to increase legal certainty and uniformity, many professionals believe that the court actually complicates current proceedings. Some feel strongly that European patent litigation should remain national so as to avoid unnecessary difficulties.
In Germany, some members of the patent community remain sceptical about the UPC’s ability to simplify and streamline proceedings. Gunnar Baumgartel of Maikowski & Ninnemann maintains that the UPC’s handling of cases will be over complicated in comparison to national courts, specifically in Germany. He predicts that this will result in a higher concentration of cases, which will inevitably spread legal efforts more thinly.
Heinz Goddar of Boehmert & Boehmert takes a similar view. He recommends that future applicants for national German patents should remain under German courts “without the UPC – with all of its uncertainties – getting involved”.
While some experts have already made up their minds about the UPC, others are taking a more measured stance. Sherry Knowles of Knowles Intellectual Property Strategies admits that the UPC has in fact had little effect on her biopharma practice thus far. She says that her firm, along with many others, have opted out of the system – not because they oppose it, but to determine whether it will be pro or anti-patent by “watching from the sidelines”. Knowles says that she will base her decision to opt in on how closely the UPC reflects a patent-friendly legal system.
There are clear divisions amongst experts about the risks and opportunities of the UPC. However, it is crucial to remember that changes to the IP landscape are also chances to showcase adaptability. Dominik Ho points out that the UPC is an opportunity to develop “new best practices”: the patent sphere is always evolving and experts should treat the UPC no differently to any other procedural change.
IAM’s Global Leaders showcases the patent elite from around the world and digs into their insights on the IP industry today