“We 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 trolls.
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 plaintiffs.
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 litigate.
“When 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 consultation deadline.