In spite of the Brexit vote of June 2016, discussions on the UPC (which will have one section of the central division located in London) are still ongoing. The British government declared in late November that it would proceed with the ratification of the agreement. Michel Abello, lawyer and patent specialist, talks about this development.
Leaders League: the establishment of the Unified Patent Court (UPC) takes place in a complicated political context, in spite of the legal progress it would represent. What is your point of view on this ongoing process?
Michel Abello. This is a remarkable move on a political and strategic level. The recent declaration of the British government that it will shortly ratify the agreement on the UPC is a good surprise as a unified court without the United Kingdom (which is the third most important place for patents in Europe) would be much less attractive. This ratification should allow for a launch by the end of 2017. In the long term, it is likely that the UPC will result in a redistribution of litigation throughout Europe given the specialization of the sections of the central division. This will benefit to London (where trials are currently very expensive) and also to Paris which will host the seat (and therefore about 55% of European litigation if we take statistic data of Darts-IP). Germany, which is today one of the most important countries for patent litigation (fast, stable and pro-patentee courts) will remain attractive, especially thanks to its four local divisions and its section dedicated to mechanics in Munich. This redistribution will probably be beneficial to the attractiveness of Europe for major international patent litigation.
Could you tell us about the advantages and disadvantages of the future unification court?
The main disadvantage is inherent to the unitary nature of the invalidity action against patents: this means that a single invalidity action may result in losing all protection on the whole territory of the European Union for the unitary patent, as well as for European patents. On the other hand, patents that will survive invalidity actions will benefit from a stronger protection on this same territory due to Res Judicata. It will be necessary as early as the patent is applied for, or else when the European patent is granted (or when the UPC enters into force, for patents that are already granted), to carefully think about choosing a unitary patent or to opt-out, taking into account the force of the patent and especially the field. Another strategy that is being contemplated more and more by the industry would be to choose national applications so as to be able to keep defending the patent independently in each member state.
How do you plan to assist your clients with the unified court and the unitary patent?
We are founding member of the UPCLA network (Unified Patent Court Lawyers and Attorneys) which will be launched in 2017 (www.upcla.eu). This network aims at regrouping firms of lawyers and / or of European patent attorneys, all national leaders in patent, in order to coordinate actions before the UPC. Having engineers and lawyers echoes the composition of the future unified court. At this stage, the network already has nine founding members in France, Switzerland, Italy, Belgium and Luxembourg.