Can you tell us about some of the highlights of your professional life so far and why they stand out?
I have had the privilege to clerk with some of Germany’s most renowned patent judges and I have gained tremendous knowledge and insight from this. Knowing what judges consider important has helped me and my team in many high-stakes patent infringement and EPO opposition cases, which recently included Gilead’s blockbuster HIV drug Truvada and Bayer’s blockbuster anticoagulant Xarelto, as well as exciting new chemical technologies such as green packaging and biodegradable plastics.
What are the key characteristics that clients look for in a top-level IP attorney?
A top-level IP attorney should be a strategic and meticulous thinker. They should be able to break down complex technical cases into simple key arguments. Also, it is important to have plenty of litigation and opposition experience as you are only able to write strong patents for your clients if you are aware of the traps, tricks and weaknesses that competitors use to attack patents in litigation.
The race to develop and distribute covid-19 vaccines has thrust the life sciences sector into the spotlight – what changes do you expect to see as a result of this scrutiny?
Despite public calls for a waiver for covid-19 vaccine patents, the development of effective covid-19 vaccines in such incredibly short timeframe was, to a large extent, made possible by the existing patent system, which incentivises innovation and allows pharmaceutical companies to recoup their investments when successful. The public discussion around covid-19 vaccine patents may increase awareness of compulsory licences, which courts in Europe grant under exceptional circumstances only.
How do you ensure that highly technical concepts are made clear and accessible for key stakeholders and judges?
Judges and key stakeholders want arguments that are clear and easy to understand. Thus, once we have grasped a case and developed our arguments, we spend a great deal of time simplifying and visualising the underlying technical concepts. There is much truth to Goethe’s famous quote: “If I had more time, I would have written a shorter letter.” Finding the right balance between the necessary technical details on the one hand and simplicity on the other hand is key. Our firm’s own graphics department creates state-of-the-art 2D and 3D static and animated visual media to explain complex technical issues, which we use in our briefs and at oral proceedings.
What are the most important considerations for pharma companies engaged in patent infringement proceedings in Europe?
Pharma companies wanting to engage in patent infringement proceedings in Europe have the choice of several European countries in which to initiate patent infringement proceedings and usually their decision is business driven. German courts are one of the first choices for patent owners for infringement proceedings. There is a bifurcated patent litigation system with patent infringement and patent invalidity proceedings handled by different courts. This often plays to the advantage of the patent owner and can lead to a situation where an injunction is issued against a defendant before the patent court has decided on the patent’s validity (ie, the injunction gap). This can put enormous settlement pressure on a defendant. In addition, particularly in patent disputes between originator and generic pharma companies, German courts readily grant preliminary injunctions, which is another reason for the popularity of German courts in patent infringements. The recent reforms to the German Patent Act are not expected to have a significant impact on pharmaceutical patent litigation in the country.
In addition, once adopted, the Unitary Patent and the Unitary Patent Court (UPC) will certainly bring a significant change to the patent system in Europe. Under this process, users will have the choice between existing European patents (bundle patent) and the new European patent with unitary effect (unitary patent). Each option has its pros and cons and users will need to carefully choose what is best for them. Even if both systems coexist for a while it can be expected that the UPC will bring along long-awaited and significant harmonisation of patent law in Europe.
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Arwed Burrichter is a European and German patent attorney. He obtained a PhD in chemistry from the University of Southern California, Los Angeles, under the guidance of Nobel Laureate Dr George Olah. Dr Burrichter has a substantial track record in EPO opposition and nullity cases. He maintains an extensive patent prosecution docket for his clients and advises on strategic IP decisions and has authored numerous articles and co-authored a textbook on European patent proceedings.
Click here to see his IAM Patent 1000 2021 profile.