At the annual Premier Cercle conference on the UPC and UP in Munich yesterday Bird & Bird lawyers from the UK and Germany joined delegates including private practice and in-house lawyers and patent attorneys, EPO professionals and national court judges. A number of speakers and commentators expressed not only their hope but their expectation that the UPC/UP system would both commence notwithstanding current stumbling blocks and become a successful, attractive forum for European patent applicants and litigants.
The most immediate stumbling block to the commencement of the system is a challenge in the German Constitutional Court to Germany's proposed ratification of the UPC Agreement. New EPO President António Campinos (on his second day in office) stated his expectation, echoed by the EPO's Principal Director for the UP, Margot Fröhlinger, that this challenge would be decided during the course of 2018.
A less immediate but perhaps more complicated stumbling block is presented by the UK's forthcoming Brexit in March 2019. English barrister Douglas Campbell qc addressed delegates on this point, expressing his personal view that a way would be found for the UK to participate fully in the UPC system, although it was likely this participation would face legal challenges.
In relation to the UP, Mr Campinos said that he hoped the first UP would be granted "very soon" as that the EPO was ready to deliver it now. As reported in further detail by EPO Select Committee Chairman Jérôme Debrulle, the EPO has constructed an automated application system for the UP and is waiting only for ratification of the legal instruments. Ms Fröhlinger reported that the EPO was considering two issues of particular concern of applicants: (1) the ability to grant unitary effect for patents soon to grant before the UP system is live; and (2) whether applicants will be able to delay grant in order to benefit from unitary effect. In respect of the first, the EPO is intending to introduce a 'sunrise' period of sorts. In respect of the second, no firm decision has yet been taken. The EPO has in the meantime published a User's Guide to the UP addressing the more basic questions of how pending EP applications will be able to grant as UPs when the system comes into effect.
In relation to the UPC, Professor Ansgar Ohly and Pierre Véron discussed certain scenarios and theories of the parallel jurisdiction that will exist between the UPC and the national courts, including in particular during the transitional period of at least 7 years after the UPC comes into effect. It was clear from this discussion that there are certain points on which distinguished commentators are not agreed and there will be scope for creative litigants, particularly in the early part of the UPC's life, to explore the courts' respective jurisdictions to suit their own objectives.
Besides discussion of the mechanics of the system's operation, a panel of industry members discussed their views on the UPC and UP system from the perspective of various users and user groups. Representatives of Bayer, the IP Federation, ASML, Valeo and EPLAW discussed their or their members' approaches to the forthcoming system, highlighting the differences between different industry sectors notwithstanding the generally positive approach of each of these commentators to the forthcoming system. Immediately following this discussion, EPO Chief Economist Yann Ménière presented the EPO's study into the economic benefits of the UPC/UP system, explaining its finding that the system would be beneficial for European trade and foreign direct investment, particularly for SMEs, though the simplification of a single market for technology.
The most lively part of the day was produced by a mock hearing for a provisional injunction, heard by a distinguished panel of judges from the national courts of Belgium, France, Germany and the UK. The judges' deliberations prior to their judgment showed two things: first, that there are real differences in the existing national law applicable to granting preliminary injunctions but that, second, the judges did not feel themselves bound by their own national law principles when interpreting and applying the principles laid down by the UPC Agreement and the Rules of Procedure. Presuming the judges appointed to the UPC in due course adopt the same approach, one can foresee a significant degree of de facto harmonisation in the national courts owing to the likely desire in many if not most national courts to follow the course of the UPC (to the extent their national law permits).
In all, it was a fascinating day, the only frustration being the fact that the system is not yet up and running.