Preparing for cross-border litigation is a key challenge for in-house patent litigators. Without the assistance of a centralised patent court, IP attorneys must litigate the same case in different languages, legal systems and cultures.
Sources describe their litigation strategies as boiling down to performing the same opera for different audiences.
“You don't litigate in every single country at once – you pick some core countries where the battle is really fought and get one or two decisions under your belt from some well-respected jurisdictions,” an industry source tells Patent Strategy.
“After that, what you are doing is spinning those out across other jurisdictions. So as long as your core countries have come up with a decision that you want, you essentially rinse and repeat.”
While one of the first things IP attorneys consider when litigating in multiple jurisdictions is where they can get a favourable ruling and the biggest settlement, less commonly considered are the cultural differences between judicial systems.
“You do not bow to a German judge and it is a bad idea to check your phone in a UK courtroom unless you want a scolding from a judge in a white wig,” says Clemens Heusch, head of European IP litigation at Nokia. He adds that one should also address a French IP attorney as master.
Larger companies that are more familiar with litigating in many countries will have specific departments in place that assist them in the local jurisdictions, according to sources.
These departments have specific knowledge of local legal systems and practices. Smaller companies that are not as familiar with the systems hire a coordination team that tailor the litigation strategy to the local environment.
Heusch advises IP attorneys that when they’re hiring outside counsel, they should visit multiple firms to get the lay of the land. “They'll often tell you different things, which is why it's so important that even if you've done a pre-selection, you need to meet different teams because you learn something from everybody,” he says.
“If they are telling you the same thing, you can identify a trend, and if they tell you different things you then realise those are individual experiences.”
Another piece of advice sources tell Patent Strategy is to keep an open mind when preparing litigation strategy. “You learn your whole life,” Heusch explains. “If I go to a country where I have no experience I reach out to my private network that I've built over the years and often they've had different experiences than me.”
When asked about his impressions of working abroad, one source notes: “When you’re thinking about different countries you realise no country is better or worse. They are just different.” “When you first start out, you think: ‘Oh this is crazy, this isn't like my jurisdiction.’ And you then get a different perspective over time and realise that your legal system might not be the best. There are plenty of other systems across Europe that all have their pros and cons.”
Lost in translation
Learning how to approach a case from different perspectives is one benefit to litigating in different countries. IP attorneys who work abroad get crucial exposure to different points of view and systems of approaching the same problem.
An industry source tells Patent Strategy that working with external counsel teams in different European jurisdictions can be one of the most interesting parts of working as a patent attorney.
“It gives you the option to work with lots of different lawyers from many different countries and it's an enriching experience. It is also fun to do,” he says.
Speaking at the 2019 Managing IP International Patent Forum in London, Francesco Macchetta, director of IP at Bracco in Italy, told panellists: “The cultural dimension can be one of the most enjoyable aspects of the job. But it’s a lot of responsibility.
“You are always translating your management language or your outside counsel language. This is one of the things that makes our profession special and worth doing.”
Heusch points out that interesting examples of cross-jurisdictional differences are those between the US and German legal systems. “The Americans have weeks of hearings and have discovery. In Germany there is no discovery and the hearings last two hours, but the results are generally the same.”
Macchetta says: “The laws are different between countries, but not the principles. The cultural differences are important to keep in mind.”
Communication styles vary across countries as well. Cultural stereotypes aside, how attorneys from different cultures communicate together can pose problems. Heusch says: “My former UK-born boss would tell me that my work was really great but could benefit from adding a few points, when he meant my work was terrible. Whereas I am German and would have taken a different route and said: ‘This is awful. Do it again.’”
It’s not over till the UPC
Sources agreed that if the Unified Patent Court (UPC) ever comes into being, it could solve many of these cross-border litigation headaches.
“It would cut away all this rinse and repeat nonsense that we have to deal with all across Europe,” an in-house source tells Patent Strategy.
“Standing back and looking at it, the multi-jurisdictional system in Europe an incredible burden on countries because all they are essentially doing is running the same case but for a different court and with a different set of lawyers, which can be seen as a waste of time.
“But without the UPC, that's the system we've got.”
By having a one-stop shop for patent litigation, firms would no longer have to spend the budget and administrative resources needed to litigate the same case multiple times. But until the UPC comes into being, be sure to show up on time at a German court and address a French IP attorney as ‘master’.
