What have you been doing to prepare for the imminent opening of the UPC?
I was a big doubter: will I ever see the UPC opening its doors? And, if not, would I really miss it? Frankly, I am still not hugely enthusiastic about it. Big pharma and the other big filers are understandably hesitant to put their crown jewels under the jurisdiction of the UPC. Rather, they opt them out. Whether that will help to attract the high-calibre personnel needed by the UPC to earn a reputation remains to be seen. It is currently all about managing uncertainty. In practical terms, we have been educating clients about the UPC in general and helping them with their opt-out strategy on a case-by-case basis. We will not open offices in Munich, Paris or even Milan. I do not currently expect any major impact on litigation activities in Switzerland.
As a member of the working parties on rules and guidelines at the EPO’s SACEPO, can you give us some insight into how such groups contribute to the wider patent ecosystem?
The EPO is a huge administrative machinery, very efficient and effective; but would that still be the case from users’ perspective if the EPO always simply applied changes to the implementing rules and the guidelines as it deems fit for purpose? Most likely not. This is where the SACEPO working parties come into play: the EPO seeks early feedback on planned changes from the user groups represented in the SACEPO before they are enacted. Likewise, the SACEPO is a funnel for user-triggered proposed changes to current practice. It is a give and take, involving both sides of the table, to improve the system.
You advise and represent clients in proceedings before the Swiss Federal Patent Court. What key skills does a world-class patent litigator need to succeed before the Court?
Proceedings at the Swiss Federal Patent Court are governed by the Civil Procedure Code, just like any other litigation in civil matters. This makes proceedings pretty formalistic and front-loaded during the exchange of briefs. Playing by the procedural rules at this stage is a must, but doing so can result in a very boring read. Putting everything into an irresistible line of arguments that can easily be followed is the icing on the cake. The same is true of hearings. One cannot bring anything new at that stage, but it is a great chance for a didactically clever presentation of the core arguments – a chance that should be taken.
You run the ‘www.patentlitigation.ch’ blog, which provides commentary on the case law of the Swiss Federal Patent Court. What is the benefit of this and how do you find the time?
The most important benefit of the blog is probably that I learn a lot myself. To comment meaningfully on judgments, I need to read, understand and question them. That is great training. And why not put all of this out there? This has already triggered a lot of enlightening discussions with peers. Finding time is never a problem with things that I love to do. I jump on every judgment that is published; I just cannot help it.
What has been your proudest professional achievement?
Pride? That does not really speak to me. I take satisfaction from the small things on the job: creating a nicely put argument that finally convinces, exposing inconsistencies in the other party’s pleadings or teasing them to make them say things they should not have said. All this is great fun. Thinking about special moments, I was once moved when a client sent a big gift basket to thank a colleague and me for filing a (finally successful) opposition with the EPO shortly before midnight, having learnt about the existence of the patent only in the afternoon of the same day. The gift came as a complete surprise. I like the human touch in dealing with clients. Some become friends over time. Coaching trainees on their way to becoming patent attorneys is very rewarding too. It is great to see talented people developing their skills.
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Martin Wilming is a Swiss and European patent attorney with a PhD in bio-organic chemistry. He is mainly active in complex prosecution, opposition and appeal proceedings before the EPO and in litigation before the Swiss Federal Patent Court. Dr Wilming is an active member of the European Patent Practice Committee of the Institute of Professional Representatives before the EPO and contributes to the work of the EPO’s Standing Advisory Committee.