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The UPC in the European Patent Litigation landscape Willem A. Hoyng AIPLA Annual Meeting 23-25 October 2014, Washington DC.

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Presentation on theme: "The UPC in the European Patent Litigation landscape Willem A. Hoyng AIPLA Annual Meeting 23-25 October 2014, Washington DC."— Presentation transcript:

1 The UPC in the European Patent Litigation landscape Willem A. Hoyng AIPLA Annual Meeting 23-25 October 2014, Washington DC

2 UPC Proceedings (5 minutes) 1.Front loaded 2.Continental with touch Anglosaxon 3.First part (“written proceedings”): In writing, two exchanges of written submissions 4.Second part (“interim proceedings”): the judge rapporteur makes sure everything is ready for oral hearing 5.Third part (“oral proceedings”): In principle: one day hearing: oral argument plus – as far as relevant - hearing witnesses, experts (under the control of the presiding judge) 6.Decision in about 12 months 7.Fourth and fifth part: Damages and costs: optional 8.Privilige: Litigation privilige for lawyers and patent attorneys (also in house) as to confidential communication in which they act in their professional capacity 9.Will in house privilige survive? (Germany is against; see also ECJ)

3 Rules on discovery (2 minutes) In accordance with Enforcement Directive (art. 6, 7, 8) Pre trial (ex parte) seizure of documents, samples etc. Pre trial freezing of assets (Pre trial?) ordering a party or third party to produce evidence (art. 59 Treaty) Rule 190 During proceedings: order to communicate information, order to do experiments No hearing of witness, experts prior start of proceedings (so no deposition) PS: Judge Rapporteur can ask to produce documents etc.

4 Judge Rapporteur (2 minutes) Adversial but with inquisitorial possibilities Can give further extensions in written phase Can organise (by telephone or video) interim conference Can ask: further clarification, produce evidence, produce specific documents, order separate witness and expert hearing before panel and in general what he deems necessary as prep for oral hearing Can “prepare” witnesses and experts President (court) determines what is relevant and leads the interrogation. Parties are allowed to ask questions Sanction: decision by default by the Court (“may”)

5 Timing / Costs (5 minutes) Writ of summons: check by registry Answer / counter claim: three months Reply / answer counter claim (amend patent): two months Rejoinder / reply counter claim: one months Rejoinder counter claim: one month But Judge Rapporteur can give extensions or allow further pleadings Interim proceedings: 3 months (Judge Rapporteur) Oral hearing 1 day or exceptionally more Judgement: endeavour 6 weeks (118.7) Loser pays in accordance with art. 69 of the Agreement (118.6) Art. 69: ceiling for costs in ROP: ROP refers to Admin Com (152.2). Is this in accordance with Enforcement Directive art. 14?

6 Forum Shopping (2 minutes) Favourable for patentee: He can choose 1.Place of residence or principle business or business (broad!) 2.Place of (threatened) infringement (internet) 3.Co-defendants (same infringement plus commercial relationship) 4.Agreement with defendent 5.Torpedo: invalidity or declaration of non infringement in central division can be moved to local / regional division of choice by patentee 6.Central court if infringement in Malta, Luxembourg or one of the defendants is from outside EU NB: Unilever clause: defendent can avoid regional court and have case referred to the central court in case of infringement in the territory of three regional courts Paneuropean injunctions including Turkey, Spain etc. possible? (See art. 31 Treaty but also Regulation no 542/2014))


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