IP Quick Tip: First experiences at the UPC

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Hi everyone, welcome to this IP Quick Tip relating to our first experiences at the UPC. It goes without saying that all of this is very exciting and still in its early stages. However, certain trends already seem to be robust. As of mid-October 2023, 84 cases have been filed and BARDEHLE PAGENBERG is representing plaintiffs and defendants alike in 21 of these cases, having an amazing market share of exactly 25%.

Not only were we “first” in filing the initial cases on day 1, we also attended the very first procedural and substantive hearings at the Court of First Instance and the Court of Appeals. Indeed, we even won the very first inter-partes preliminary injunction based on the very first asserted Unitary Patent for our clients 10x Genomics and Harvard University with effect in all 17 member states. So, we do have relevant experiences to share.

Most importantly, the UPC is functioning very well so far – in contrast to the electronic Case Management System – and delivers timely, high-quality decisions.

In our cases, the international panel of judges including technically qualified judges was perfectly prepared and very engaged in the oral hearings. They presented their preliminary opinion in detail and gave clear guidance to the parties as to what to focus on in their oral arguments. In fact, all of the judges asked many questions, thereby drilling down right to the core of the technical questions at issue. They clearly “tested” the parties’ responses for their decision-making process. Given the technical expertise on the bench, this means that parties are well-advised not to provide evasive answers, but to explain their positions in an expedient and convincing way, and to avoid bogus arguments impairing credibility.

As oral hearings are audio recorded, it is further advisable to diligently prepare and train for the oral arguments and to think on your feet. Using mock trials and US-style court reporters has proven to be helpful in that regard.

Interestingly and contrary to some expectations, there are no judges dominating other judges on their “home turf”. The panels we experienced functioned like a sports team. One could tell that the judges really consider themselves a united team for a Unified Court and that they “think UPC” by not shying away from adapting or improving national and EPO case law as they see fit. These highly motivated best-in-class European patent judges will make the UPC a reliable and balanced center of gravity for resolving global patent disputes in a harmonized way. As a result, all good so far and exciting times ahead!