Part of the reason for that is that lawyers from outside
Germany – which already operates a bifurcation
system for patent litigation – are finding our how the
rules are likely to operate in the new Unified Patent
But it is also because judges themselves are beginning to
clarify the kinds of patents and patent cases that are likely
to be subject to bifurcation – and suggesting the
volume may be lower than many IP lawyers feared.
Forum in Munich in September 2013, for example, German
judge Tilmann Buttner of the Regional Court of
Düsseldorf (pictured) explained to the audience
which cases he might bifurcate if he were a UPC judge.
A year later at our Forum in Paris, Buttner said that
over the past 12 months he had revised his thinking and was now
less inclined to bifurcate.
"Last year I talked about some cases being "bifurcation
cases" and others not. I would rather not bifurcate. [UPC]
courts are in a good position to render good and reasonable
decisions on revocation as well as infringement because they
will have a technical judge."
"My message is that we may not bifurcate. But even if we do,
it’s not all bad. The courts are likely to hand
down a conditional decision that is subject to the revocation
But there is also a sense that lawyers are becoming more
adept at developing new strategies to deal with new patent
Speaking about the
two-year-old US Patent Trial and Appeal Board, Charles
Larsen of Ropes & Gray told the audience: "We Americans
used to fear bifurcation. Now we’re doing it".
You can read more about the popularity of the
PTAB’s procedures for parties seeking to
invalidate a patent in the
latest issue of Managing IP.