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Europe’s new sport: fighting to host UPC divisions



Emma Barraclough


New figures relating to patent litigation in Europe could reopen the debate about the way the Unified Patent Court system works in practice

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 sent 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 case.

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.

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