Although there’s still plenty of trepidation
about the way that the UPC system will affect IP owners and
users, critics of the system have largely shifted from
bemoaning it to preparing for it.
Judging from Managing IP’s European
Patent Reform Forum in Munich last month, IP professionals
are still keen to shape the system’s rules (they
more than 70 sets of comments in the most recent round of
consultations on the draft rules of procedure), and to divide
along old pro-/anti-bifurcation lines. But it seems as though
the patent profession is readying itself for the reality of the
Unitary Patent and the UPC.
There is one aspect of the system that has received little
coverage so far, however: how the level of patent litigation in
EU member states will affect the ability of governments to host
local or regional divisions of the UPC, and the composition of
the judges that sit there.
Now, though, lawyers from Powell Gilbert, working with
counterparts elsewhere in the profession, have done some
digging into the statistics. Although Germany is the biggest
centre of patent litigation in Europe, Managing IP has often
heard suggestions (from London-based lawyers, it has to be
said), that the numbers are skewed. Now the data gathered by
Tim Powell and Penny Gilbert suggests that might well be the
They argue in a
guest blog post for Managing IP that if cases are counted
in the same way as in Germany, the recorded claims in the UK
would be far higher. That is because German courts have a
practice of splitting patent cases by patent and sometimes by
party, and of treating claims for revocation as separate to any
infringement action. This ramps up the number of individual
claims, they say.
Powell and Gilbert also argue that the headline figures
obscure the importance of the UK courts in the patent
litigation strategies pursued by plaintiffs and defendants.
More than a quarter of claims litigated in the UK are also the
subject of lawsuits overseas, for example (far higher than the
2% figure for Germany).
Many London-based patent lawyers are sceptical about the
touted benefits of the UPC for their clients. Some of them
became a little more enthusiastic after London was awarded one
of the Paris-based central division’s two national
offshoots. This latest attempt to secure a greater role for the
UK could be regarded as a new round of patent lawsuit
landgrabbing on behalf of local lawyers. But there are two
reasons why it merits attention. If the figures add up, then it
is only right that the UK warrants more UPC divisions. Second,
the UK’s patent courts and its judges are widely
respected. Ensuring that they play a full role in the UPC is
surely good for the system as a whole.