After a brief period of uncertainty following the Brexit vote, the future of the European patent system once again became clear in November 2016. The British people’s vote to leave the EU initially brought the busy launch preparations to an abrupt halt, as ratification by the British parliament seemed highly unlikely. However, now that the British government has declared its intention to ratify the agreement, experts fully expect the new patent court system, consisting of the EU patent and a central patent court (Unified Patent Court, or UPC), to come into effect in October 2017.
Nevertheless, Brexit still has serious consequences for the new system: it is currently unclear whether the UK, as a non-EU member, will be able to take part in the UPC. That the fifth strongest world economy may not participate in the system could result in a loss of confidence among those companies wishing to use it. All efforts at EU level and in London are thus currently going toward finding a solution in order to integrate the UK into the UPC system as a non-EU member by means of an amended agreement. Following the UK’s announcement, however, the system is going ahead anyway, with or without the UK’s participation. The EU patent system will then exist alongside the national patent systems and the so-called European “bundle” patent (European Patent Convention treaty). Europe thus offers many tactical opportunities in terms of litigation.
EU patent: More competition for German firms?
Experts assume that the UPC – once in effect – will quickly see a stream of cases and that success is a given. Chemicals, consumer goods and pharmaceuticals corporates are the potential advocates of the system, especially because of the possibility of pan-European injunctive relief, as well as NPEs. The latter are already filing suits in their droves at the German courts. Marathon, Saint Lawrence Communications (SLC) and Unwired Planet, for instance, are conducting major mobile communications litigation in Germany – and with great success. The auto industry also saw its first major suit by US NPE Synchronicity. Almost all the main litigation firms are present in these suits. Many of them have been investing heavily in preparations for the new patent system by establishing their own litigation departments, ramping up their teams, tightening cooperation with other European firms or opening offices in UPC cities. This was the case, for instance, at Prüfer & Partner, Maiwald and Vossius & Partner. The preparations for the new system also triggered strategic discussions in many firms, resulting in movement in the market. This is what led to the spinoff of Preu Bohlig & Partner’s entire IP team in Düsseldorf, which has been going by the name of Kather Augenstein since January 2016. The effects of the merger of the two patent heavyweights Hoyng Monegier (Netherlands, France, Spain) and Reimann Osterrieth Köhler Haft (Germany) into Hoyng ROKH Monegier reached well into 2016.
Technical protection rights are of vast importance for companies: patents and registered designs contribute to a company’s economic development. In Germany, two professional groups provide advice on this. Patent attorneys perform what is known as patent prosecution: they file patents and register designs, as well as conducting official proceedings. Lawyers are in charge of litigation in infringement proceedings. Both professional groups litigate in nullity suits and provide advice in connection with protection right strategies and invention rights.