Getting ready for a little weekend getaway |
Events
4iP Council Webinar - IP and Startups: What, Why, How (24 October 2024)
UK Trade Marks Act 1994 at 30 - Going Forward, Looking Backwards (7 November 2024)
Royal Society of Chemistry Law Group - Intellectual Property Law Seminar 2024 (26 November 2024)
Event Report: The UPC One Year On: What Do We Know Now?
UPC judgments to date were praised for their quality, clarity and readability. A point of interest for the panel was the relationship between UPC jurisprudence and case law from the EPO. The panel observed that, to date, the majority of UPC validity analysis has tended to follow the EPO's approach, with an important exception in relation to the test for inventive step. While the UPC has not adopted the EPO's "problem/solution" test wholesale, its judges have also been careful not to seek to set out an alternative code for obviousness. This could, of course, change with an authoritative UPC Court of Appeal merits decision in the future.
The panel noted that the German national courts' approach to obviousness is similar to that in the UK and involves a multifactorial analysis. Given the prominence of German divisions and judges, such arguments may be reflected in UPC decision-making in the form of a holistic list of potentially relevant factors rather than a structured formula. In respect of other aspects of validity analysis, the panel suggested that it seems unlikely that the UPC would diverge from the EPO just for the sake of it.
A number of challenges arising from UPC procedure were highlighted: the time for developing case theory, preparing evidence, collating expert reports and drafting submissions is far more compressed than the timeframes that UK practitioners may be used to. This also raises client management difficulties that junior practitioners should be alive to where they may be asking clients to review and sign-off on lengthy submissions and rejoinders with a tight turnaround.
The panel also noted the difficulty of juggling caseloads where substantive cases are not stayed for procedural appeals (typically a point of principle from the UPC Rules of Procedure Preamble setting out an aspiration that proceedings shall be conducted in a way that normally allows a final first instance hearing to take place within one year – which has seemingly been elevated to a hard and fast cut-off). There were also anecdotally some teething problems with the procedure for service at the UPC, where proceedings are served by the court rather than the parties. This can cause frustration, and lead to staggered related proceedings due to the different dates of service depending on the location of the parties served.
On the whole, this engaging panel session was imbued with a sense of positivity with attendees keen to be involved with the UPC and to play a part in its development in the future. With one eye on the deferred Irish referendum and the potential changes that this could deliver, this IPSoc event marked an important opportunity for junior practitioners to learn about the role they may be able to play before the UPC, whether as part of mixed teams, co-counsel or co-ordinating international patent litigation.
Further to the recently held IPSoc event, focusing on the first year of the UPC, I would like to inform that CEIPI organised a conference on the same topic: “The UPC - The first year in review”.
ReplyDeleteThe program of the day can be found on the following link:
https://www.ceipi.edu/websites/ceipi/Documents/Colloques__conferences__seminaires__tables_rondes_du_CEIPI_dont_photos/2024/The_Unified_Patent_Court_The_first_year_in_review/The_Unified_Patent_Court_-_The_first_year_in_review_10_09.pdf
The program was extremely dense and various speakers, from the UPC itself, from private practice or industry as well as a representative of the boards of appeal of the EPO were giving presentations.
Should you be interested, I published on my blog a summary of an extremely dense day in which a wide range of topics were presented.
The link is the following:
https://blog.ipappify.de/ceipi-conference-on-one-year-of-upc-on-26-09-2024-a-summary/
What was remarkable a the end of the day was the presence of a white elephant in the room: the referral G 1/24.