[Guest post] Engines are really warming up: one (last?!) life sciences conference before the UPC

The IPKat has received and is pleased to host the following conference report by former GuestKat Gabriele Girardello (Pavia e Ansaldo) on a life sciences conference that he attended in Amsterdam a few days ago. Here’s what Gabriele writes:

Engines are really warming up: one (last?!) life sciences conference before the UPC

by Gabriele Girardello

At the end of last month this Katfriend had the opportunity to attend a conference in Amsterdam devoted to ‘Pharma & Biotech Patent Litigation Europe’ (programme here). The conference has become an annual event. This year, over 200 delegates attended from all over Europe (in its geographical sense, as there were also several representatives from the UK), all with quite a diverse background: IP lawyers, patent attorneys but also many representatives from the industry and even high-level judges and members of public institutions. The topics covered were numerous and very technical (biologic drugs, second medical use patents, SPC waivers and divisional patents, just to name a few) and the synthesis abilities of this former Kat do not allow for them to be covered here.

A litigator Kat whispering in the ears of a poor UPC Judge (ph. Timothy A. Gonsalves CC-BY-SA-4.0)

This said, I think that readers of this blog would be interested to know that much was also said about the Unified Patent Court, in particular, the way in which pharma and biotech companies will be approaching the Court.

The first thing is that, given that we are now only a few months away from the start of operations (the first cases will be filed on 1 June 2023), one might have expected a clearer and somewhat shared position on the part of the operators regarding their attitude to the Court. In particular, one could have expected to hear, particularly in the life sciences sector, a decisive tendency for opting out, especially for the so-called crown jewel patents. Instead, the general impression was that there was a certain curiosity about the new system, also by pharmaceutical companies with major patent portfolios, which are primarily afraid of 'wasting the opportunity' if they are unable to influence the formation of the Court's first jurisprudence. The debate was also attended by representatives of the EPO, who reported that they had not yet worked out the first estimates for early requests for unitary effect (which could be submitted from 1st January), but that the general feeling was that there was a real interest in the system. In fact, the first request was filed...at 00:23 on 1 January 2023 (so there is someone who (a) really wanted to be the first Unified PatentKat and (b) did not celebrate New Year's Eve very much...).

There were numerous talks on UPC, with speakers from both the industry and the legal world and, above all, a number of both technical and legal judges reporting on the coordination and preparation work. Concretely, also as a result of some questions from the audience, it emerged that – from a substantive point of view – there should be a certain affinity of the UPC with the approach of the EPO with regard to the assessment of validity requirements. For example, it emerged that the problem-solution approach should be, at least at the beginning and at least according to the judges who intervened, the most popular method for assessing inventive step. But in any case the judges made it clear that there is no precise 'stable order' that needs to be observed. A such, they said that they do not feel bound at the moment to any specific precedent, well understanding that they are facing an interesting challenge of creating case-law from scratch.

It emerged that a major recourse to forum shopping is somehow expected. That not so much (or not only) with the aim of putting the infringer in difficulty, but rather with an eye on the 'quality' of the panels of judges. Among other things, the audience raised some criticism over the fact that the various venues might somehow be competing between themselves by adopting a pro-patentee attitude in order to attract relevant number of cases and also keep the institution ‘alive’ given that, in the end, it is mainly patentee-driven. The issue is obviously well known and thorny, but even on this point above all the members of the UPC who intervened evidently wished to reassure, in the opinion of this Katfriend, with very appreciable seriousness and firmness that the attitude will not be that of a race to issue measures. The purpose that the judges seem to share is that of trying to provide Europe (or, better, the participating Member States) with a system of dispute resolution that is rapid, efficient and above all as homogeneous as possible in the application of the rules. Some interventions, however, did indeed suggest that there is a certain tendency on the part of some operators in particular to think that they can concentrate litigation in forums deemed to be more patentee-friendly. In short, only the practical reality will be able to tell us more about these patent wars so far only played out in mock simulations.

A further intriguing debate was whether the UPC will be keen on issuing cross-border preliminary injunctions also against UK-based defendants for activities carried out in the UK, but which have somehow strict connections with infringements of a unitary patent. And much to this former Kat’s bewilderment, the feeling is that the Court might actually take the issue seriously, on the basis of Article 71b (2) Brussels Recast Regulation when stating that “Application may be made to a common court for provisional, including protective, measures even if the courts of a third State have jurisdiction as to the substance of the matter”.

A final mention needs to be made to the quality of contraposition between so-called originators and genericists (disclaimer: this former Kat is more of this second kind). In fact, despite the obvious different views, sometimes expressed in rather crude terms (and it could not have been otherwise, particularly with regard to possible anti-competitive implications) the overall climate was really that of a community which has the aim to try and obtain the best from the times ahead.