After an initial flurry of activity following the first coronavirus lockdown, Europe's patent system has settled down. Courts are hearing cases remotely, patent lawyers are working from home, and both the courts and firms are facing each new challenge as it comes. Alongside the significant hurdles which the market has overcome, for some patent lawyers the pandemic is helping accelerate further modernisation of the European patent market.
31 March 2021 by Amy Sandys
In March 2020, across Europe, governments implemented the first coronavirus lockdown suddenly, and with little prior warning. As such, Europe’s courts and patent offices scrambled to retain control of their procedures. They quickly implemented functional new systems to allow a suddenly-disparate workforce to continue with business as usual.
Now, after a year of staying at home, Europe’s patent litigation firms, patent attorney firms and patent courts are adjusting to a new way of working.
Proceedings at the European Patent Office are being held almost exclusively via video link, with the Administrative Council recently approving new legislation to ensure the continued participation of all parties in video hearings. In the major patent hubs of Germany, the Netherlands, the UK, France and Italy, courts are finding workarounds to ensure litigation can go ahead. Behind the scenes, administrative staff and clerks are working with main players, such as judges, to ensure minimal bumps in the road.
The beginning of the pandemic looked very different, as one European patent lawyer remembers. “Everything stopped, everything closed. We were concerned, because the courts postponed all hearings.” But, as it turned out, the courts and patent offices were better prepared than anyone might have guessed. Most patent proceedings were even able to continue, albeit under new circumstances.
In sum, the rapid adaption in Europe of its patent courts, offices and firms points towards a flexible system already adapting to further future challenges.
The EPO is the clearest example of a European judicial body with rapidly-developing legislation around remote hearings. Its latest development, the introduction of Article 15a, mean now – at least until the Boards of Appeal hears the full referral on 28 May – video hearings can go ahead without the consent of both parties being necessary.
But, regardless of the referral’s outcome, Europe’s patent attorney firms have taken various measures to ensure they can attend opposition cases at the EPO – via video, or otherwise.
For example, London-based mixed patent firm Carpmaels & Ransford has created custom-designed suites to hear EPO proceedings.
With four suites available, multiple attorneys can simultaneously listen to multiple hearings. Hugh Goodfellow, Managing Partner at Carpmaels & Ransford, says, “We created a number of bespoke video conference rooms, with gooseneck microphones and a screen on the wall from which we can follow proceedings while reading our notes on a screen underneath at the same time.
“It’s seamless, frankly, and a great way of doing things, for both us and the clients.”
Naturally, innovation by patent firms alongside judicial change is key for the survival of business models now being shaped by a decentralised European patent system.
Goodfellow says these new facilities now position Carpmaels’ patent attorneys as being “as close to an in-person EPO ‘war room’ as it is possible to be”. From the client-side, now three or four outside counsel can join in with EPO proceedings.
Such visibility alone is helping strengthen the firm-client relationship, at a time when face-to-face interaction is impossible.
On the other hand, patent attorneys also report that external clients are unforgiving of multi-million-euro patent disputes being conducted via Zoom. Furthermore, patent attorneys note that in some case hybrid hearings – with some parties appearing at the EPO, and some via video – do not necessarily work in their clients’ favour. Clients want to ensure their rights are protected. But here, clear disadvantages arise when one party appears via video, and the other face-to-face.
As such, Europe’s judicial bodies are working hard behind the scenes to create an environment whereby companies are still happy to invest time and money in a system which is, first and foremost, designed to protect their patents.
From the beginning, Europe’s courts mostly committed to maintaining a smooth-running of patent cases. Now, even as the immediate impacts of the pandemic are beginning to wane, grassroots intervention by their patent judges and clerks is having a lasting effect. Last year, for example, Germany’s courts stepped up a gear.
“Very early on in the pandemic, judges at the Regional Court Munich realised that video conferencing will become crucial,” says a spokesperson for the Regional Court Munich
“Among them was Matthias Zigann, presiding judge of one of the patent chambers, who rehearsed and tested our video conferencing tools several times in a very early stage. He also paved the way to implement video conferencing into the daily workflow of the whole court. Also among these judges was Anna-Lena Klein and Georg Werner, both patent judges with the 7th chamber, as well as our video conferencing coordinator Christian Schupp.”
At the Munich court, the administration reacted quickly. The court even established internal trainings for all judges and external trainings for lawyers to get used to hearing cases via video conference.
The spokesperson says, “Our clerks also quickly familiarised themselves with it, to provide technical support. The efforts and the commitment of the court staff to establish video conferencing as a part of our everyday life at work are really outstanding.”
For the Munich court, and wider German patent system, the pandemic will tangibly shape the conduct of future patent proceedings. For example, the court predicts that party representatives from abroad will prefer attending oral litigation proceedings via a hybrid method, rather than travel for hours to attend an in-person hearing as in previous times.
Elsewhere, courts in the Netherlands quickly came full-circle following the outbreak of the pandemic. Initially closing in mid-March 2020 to all hearings, a dispute between non-practising entity Sisvel, and various Chinese and French mobile phone companies over mobile phone standards, forced their hand. A Sisvel patent was soon expiring; on 22 April 2020, the Regional Court at The Hague dared to go a different way.
Using online chat in a hearing lasting four hours, the court negotiated the technical part of a Sisvel lawsuit against BKK, Oppo, OnePlus and Wiko (case ID: C/09/578930). At the time, lawyers from all companies involved emphasised to JUVE Patent that the experiment was a success.
Furthermore, judges Margot Kokke, Edgar Brinkman and Johan de Vries closely co-ordinated proceedings throughout.
Rien Broekstra, partner at Brinkhof, says, “The first instance court was quick in installing a remote-hearing installation, allowing the court to sit in the courtroom, while allowing attorneys, clients, experts and also sometimes some judges to connect from home or from the office. There’s also the possibility to arrange live translations for foreign clients and/or experts.”
Broekstra explains how the set-up worked well from the get-go. He says, “Brinkhof represented one of the parties in the very first video hearing, which had several dozen attendees and went smoothly. Meanwhile, we also designated a remote hearing room in our new office with all the necessary equipment. This is now used for hearings regularly by all our colleagues.”
Dutch courts then emulated this success in multiple patent hearings. Broekstra says, “After a legal basis for such hearings was introduced by the legislator, the first instance court quickly switched to remote hearings. By doing so, it was able to maintain most pre-set schedules. As a result, the covid situation did not lead to any particular delays.”
Likewise, in the UK, the patent court has also readily embraced video technology. As the lockdown eased last summer, it also introduced a hybrid system. In such cases, the courtroom has to be a certain size, with a limited number of involved persons – for example the presiding judge, barristers and party representatives – present.
However, aside from the hybrid model, a major development to emerge from the UK is its more open-access approach to hearings. Now patent hearings can stream on YouTube, only muted during a confidential matter. Previously, interested parties could always watch streamed hearings; now technology enables a fully-remote experience.
Steven Baldwin, partner at Kirkland and Ellis’ London office, says, “The modernisation of the UK courts is a good thing. Although the UK judges have always been receptive to change, it’s brought the system forward into the 21st century.”
“One significant technical improvement, in addition to using remote video platforms, relates to the ability of judges and legal teams to use electronic bundles and cloud-based case management software. This speeds up administrative processes and is more environmentally-friendly than paper bundling.”
Baldwin says, “Another positive is that experts can often, with some exceptions, give evidence from their home country, limiting the need for them to travel if they are not UK-based.”
On the other hand, the UK has long-relied on meaningful cross-examinations and a oral-first barrister advocacy approach to its legal proceedings.
As such, future guidelines will rely on a careful balance between upholding this tradition and paving the way for a new era. And, with two new patent judges in Richard Meade and James Mellor joining the UK High Court during the pandemic, a new era of judicial work – combining historic legal approaches and digital access for the modern workforce – is well underway.
In France, however, the experience of judges and patent lawyers differs. Last year, the pandemic meant that no in-person hearings were held until the end of June 2020. In the interim, the courts relied more heavily on video hearings. Judges in the French first- and second-instance patent courts were issuing more written decisions to remain in control of a potential backlog of cases.
But – at least for patent – the French courts still favour in-person hearings over video conferencing. In a recent interview with JUVE Patent, Nathalie Sabotier – first president and judge at the Tribunal judiciaire de Paris – acknowledged that judging a case purely by written submissions is not adequate for patent cases. She said, “This doesn’t work for patent cases, as it is important for the lawyers to explain, and it is more practical to receive, technical information orally.”
Some lawyers also worry that a lack of in-person proceedings could impact transparency, or lead to a compromising of communication between lawyer and client.
Sabine Agé, partner at the Paris office Hoyng Rokh Monegier, says, “In the past year we have seen the French judges less, with more procedural hearings being done via phone, or on video.”
“But in the patent courts, we don’t want to rely on video conferencing as much. The judges feel less comfortable with the format, and we are looking for ways to organise ourselves more physically.”
On the other hand, says Agé, the lockdown positively impacted the French courts. She says, “With far fewer in person procedural hearings, the judges can spend more time on drafting judgments and organising hearings on the merits. This has really helped combat any potential backlog of cases.”
Away from the courts, Europe’s patent firms have also stepped up a gear. Although many patent law firms – especially those with offices in multiple countries – are used to a disparate workforce at least to some degree, the physical distance has still presented challenges.
Adrian Tombling is a patent attorney at Withers & Rogers, which has offices in London, Paris and Munich. He says, “At Withers & Rogers, we were straight into working from home. At first, our clients were a bit nervous and jumpy about the change. But we showed we could cope with the challenges of the pandemic through investing in video technology and ensuring our firm was ready to adapt to having a more spread-out team of patent attorneys.”
Furthermore, patent lawyers report more time and space to work on cases and prepare submissions. Remote working has, in some circumstances, enhanced concentration. Now some lawyers can strive for more of a work-life balance.
On the other hand, for first-year patent associates and newly-qualified patent attorneys, it can be tricky to navigate working in a new firm without the kind of hands-on intervention that firms would usually offer.
Many patent firms report ensuring their first- and second-year associates are in the office at least once a week to ensure their training can continue consistently. But patent lawyers do concede that training new colleagues remotely “isn’t quite as good” as being able to provide face-to-face support.
Recent changes have also highlighted the importance of checking mental health in the workplace. This is especially true with young members of the team, who may live in more urban centres in smaller spaces.
Tombling says, “Isolation means more need for support for perhaps newer or more vulnerable members. And we, as a firm and especially as senior figures, have to pay more attention to the needs of our team.”
Goodfellow says, “As a firm, Carpmaels stepped up communication during the pandemic. Since the beginning, we’ve been using various virtual activities to create a community feel, and like so many other firms, our approach to flexible working changed overnight. I am almost certain that we won’t revert back to the pre-pandemic norm; Covid has hugely accelerated modernisation and probably advanced our approach to flexible working by ten years.”
Thus, the past year might not have such a large impact as first anticipated. There are signs that Europe’s courts were already moving towards changes in their dealing with cases. Many firms report an uptake in the number of cases and clients – especially in medical devices and pharma – since last year.
Furthermore, the pandemic encouraged a more interconnected patent system, whereby distance across oceans is no barrier to participation. Steven Baldwin says, “From a court-user perspective, very few companies in patent cases are home-country based. In the interest of open justice and users being able to remotely attend hearings that otherwise they might not have been able to attend, the past year has hugely improved.”
Rien Broekstra says, “While our experience so far is that video hearings are not a full-fledged replacement of a live hearing, this new procedural system actually appears to be an improvement. There is more interactivity, also with experts. We can better focus on the issues that the court deems most important.”
New changes such as the switch to electronic bundles, less overall travel, and effective home-working solutions should positively impact the waste by-products of the globalised European patent market.
However the appetite for exclusive video conferencing is waning. In some jurisdictions, the judicial bodies took so long to implement a functioning system that parties are losing interest. With an ease to the pandemic tentatively in sight, a move towards hybrid hearings in such as in London or Munich could be the next option.
On a more long-term basis, the European patent market has proven its ability to adapt in the most challenging of circumstances.