I have just written up some of the most important points that emerged from two events on European patent reform that we ran in the United States last month. But there is really just one overarching theme: US companies need to do much more to understand how the Unitary Patent and the Unified Patent Court will affect them.
Given the decades of debate and EU-style horse-trading that preceded the deal on patent reform, and the painstakingly detailed work on the small print following it (the preparatory committee, for example, is now on its 17th draft of the rules of procedures for the UPC), it’s unsurprising that many in-house counsel in the US seem to be waiting for “open for business” notices before deciding whether to apply for Unitary Patents or use the new court.
But in San Jose and New York last month, they were urged to start thinking about their strategies now. “It is going to happen”, emphasised Alexandra Brodie of Wragge Lawrence Graham & Co. (To underline her point, the UK IP Office is now consulting on possible options for the location of the UK’s part of the central division.)
While European lawyers and patent attorneys can advise companies about the rules, procedures and possible strategies, only those in the business itself will be in a position to choose which patents to opt in to the new litigation system, and which to opt out.
That is process that in-house counsel need to be thinking about now, said Rosie Hardy of Withers & Rogers. “Ideally we don’t want to be filing 20,000 opt-out requests in one day. Please start speaking to your European patent attorneys now.”
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