call fear of bifurcation the 'British angst'," Grünecker's
Ulrich Blumenröder (picctured, seated left) told the Forum
during a session optimistically entitled "Bifurcation:
Debunking the myths and fleshing out the facts". But it was
clear that it wasn’t just the British that were
worried. Jim Badke of Ropes & Gray made a rare admission
(for a US IP litigator) of alarm: "I’m scared of
bifurcation," he confessed.
That fear has been echoed this week by some of the
world’s biggest technology patent owners, who have
written to officials across Europe warning them that
bifurcation (among other parts of the UPC system), may feed the
They are particularly concerned that without clearer
guidance on when courts may bifurcate, some courts may be more
likely to do it than others, facilitating forum shopping by
That is something that even fans of bifurcation conceded at
the Forum. Bifurcation can offer quicker and cheaper resolution
of cases, said Grünecker’s Blumenröder.
But it can also offer more expensive, longer resolution.
Lawyers need to consider the case before deciding where to
bifurcation would be bad then go to a panel that is likely not
to bifurcate: one where they speak English and provide
high-quality decisions," he said. "When bifurcation helps, go
to another jurisdiction." But in any case, litigants
shouldn’t expect courts that do bifurcate to grant
automatic injunctions on rubbish patents, he added.
But will bifurcation be an issue of concern in the long
term? Perhaps not. One German judge, Tilmann Buttner of the
Regional Court of Düsseldorf (pictured,
seated right), said that he would bifurcate "as little as
possible," adding that the criteria for bifurcating cases would
probably be "rather strict". Another German lawyer, Marcus
Grosch of Quinn Emanuel, told Managing IP that bifurcation is
likely to wither away under the UPC.
In the meantime, of course, the threat of bifurcation
worries many would-be litigants. Members of the committee
preparing the latest draft rules of procedure for the UPC
certainly heard that message at the Forum. Anyone else who
wants judges to be given more guidance about when to bifurcate
have just four more days to make their views known before the