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Bifurcation and the UPC – comments welcome!

The possibility for judges to separate infringement and validity is one of the most controversial aspects of the proposed Unified Patent Court. What are your views?


Last month we published an article by Gottfried Schüll and Arwed Burrichter of Cohausz & Florack in Düsseldorf, Germany in which they argued that bifurcation – the German-style practice of separating the infringement and validity hearings of a patent dispute – should be welcomed.

“The UPC will make use of the bifurcation system, which makes perfectly good sense and is something that should be embraced and not feared, as it will provide clearer and quicker results,” they write.

At my invitation, Adam Cooke of DLA Piper in the UK has written a response, which addresses why some people have concerns about bifurcation. UK practitioners are typically sceptical about bifurcation, but Cooke argues that the UPC Rules take a balanced approach.

However he adds that the Rules could be further refined “to ensure that the central division's decision on revocation is actually issued before the regional/local division's decision on infringement, and/or that an injunction should not be enforced until after the decision on validity or unless the patentee has provided suitable security”.

We’ve temporarily opened up both articles so that subscribers and non-subscribers can read them. We’d also welcome your comments, which you can post below.

The articles will be published in our March issue, along with a selection of any comments we receive on this blog, on LinkedIn or via Twitter by February 20.

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