“Despite the UPC’s smooth running, the court still has some surprises”

It is part of the patent litigator, and certainly the Unified Patent Court representative, toolbox: a poker face with the calm answer, “Everything is going as we expected in the launch phase”. But what falls by the wayside is something that is interesting to scrutinise. Namely, the surprises brought by the UPC during its first year in existence.

Munich dominates

Of course, it was clear from the outset that Germany would play an important role in the UPC. The sheer number of patent cases pending in the country and the size of its economy made it likely the country’s court would be among the most prevalent, especially after Brexit ensured the UK posed no competition.

But that, compared to all other local divisions, Munich is already playing such a dominant role in the launch phase is more surprising than the city’s football team not making it to the Champions League final at the last minute.

With the Munich division already earning a good reputation for the quality and predictability of its decisions, this is no doubt a positive. For the UPC to be successful in the long term, however, court users must also give other divisions the chance to establish themselves. This is a task that, in the opinion of a UPC ‘founding father’ Pierre Véron, will be solved through more decisions at second instance which give clearer guidelines to all local divisions.

Mix of UPC users

Before the UPC’s launch, observers voiced concerns that only large companies with extensive lawsuits would use the court. They also expressed fears that it would also be abused by NPEs. So far, however, these concerns seem unfounded: so far, NPEs have not abused the system. Pharmaceutical companies are also more willing to use the UPC than initial predictions had suggested.

Instead, the lawsuits reflect different technical areas; by no means every plaintiff comes from a large company. Furthermore, some SMEs use the UPC as an alternative to national lawsuits. The reason for this was a core argument in favour of the court in the first place: its reach.

Team size variation

Users can also put to rest the discussion about the required team size for UPC cases. It is now proven that two patent attorneys can win a UPC case on their own if it is suitably compact, for example in an early case at the Vienna local division.

But many economically significant patent battles are correspondingly large, meaning teams of three patent attorneys plus three litigators are also not uncommon. In particularly large battles, in which both sides are not afraid to pull out all the stops with large numbers of ancillary proceedings, the teams are correspondingly larger. The tight deadlines, particularly in PI proceedings, also ensure that law firms field team which are able to deal with the required administration in the correct time period.

However, law firms do not yet need representatives in every UPC jurisdiction. This is mainly because filed cases take place in divisions staffed with experienced patent judges.

UK firms in UPC system

Powell Gilbert, Mathys & Squire, Carpmaels & Ransford, Pinsent Masons and Dehns are currently disproving the assumption that UK firms cannot play a role in the UPC. They can, they want to, and clients obviously see reasons to choose them over other firms. This is another interesting surprise that underlines the wealth of possibilities when it comes to companies selecting representation.

According to JUVE Patent’s research, however, another surprise that all UPC representatives would have gladly done without is the long upload times and numerous other problems in the case management system (CMS). These all demand extra time and patience, especially from lawyers.

However, it would be more surprising if the UPC’s CMS was to launch with no teething problems. Unfortunately, JUVE Patent was unable to reliably research how many more boxes of chocolate Europe’s patent lawyers have eaten during these waiting times. Here’s hoping that the second UPC year holds just as many surprises.