Is the B word now less of a curse?

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2026

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Is the B word now less of a curse?

Last September one of the speakers at our first European Patent Reform Forum described the fear of bifurcation at the UPC the "British angst". One year on and it seems that there is rather less angst around

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 Court.

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.

judge-buttner.jpg

At our 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 decision.”

But there is also a sense that lawyers are becoming more adept at developing new strategies to deal with new patent litigation rules.

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.

more from across site and SHARED ros bottom lb

More from across our site

By accepting a relatively small sample of infringing content to grant worldwide relief, a UK court has adopted a pragmatic approach that could reduce the time and expense involved in huge enforcement actions
This year’s IP STARS Americas rankings reveal that firms are expanding their capabilities, particularly in trade secrets and life sciences
Law firms’ expanding IP capabilities are driving broader industry recognition across a wider range of practice areas
As specialist boutiques challenge traditional firm models, major disputes involving Disney, Ericsson, Siemens and Dolby highlight the firms winning work before the UPC
The firm has added two leading damages specialists as it expands beyond technical analysis and deepens its role in the economics of IP litigation
Josh Seidenfeld, partner at DLA Piper, outlines the emerging legal trends that drive the future of life sciences innovation and how stakeholders can prepare for the future
South Korea's One Law Partners is combining with boutique firm Minwho Law Group to leverage global expansion of K-content and build a broader offering spanning IP, tech and regulatory advisory work
Russell Kennedy's Gina Tresidder on juggling matters, delivering hard truths, and why IP ownership is rarely as simple as people think
Attorney Oran Friar and trainee attorney Harry Cunliffe at Reddie & Grose, share that patent filings for clinical LLMs are surging, but success in the UK and Europe hinges on demonstrating technical innovation
Implementers can use the UK courts to seek FRAND terms for patent pool licences
Gift this article