Allen & Overy’s mock UPC trials give a flavour of the real thing
08 February 2016
In January 2016, a year before the anticipated opening of the new Unified Patent Court, Allen & Overy’s patent litigators from seven of our European offices took part in two “mock” hearings before a fictional UPC court operating at our Brussels office.
Great fun was had by all, tremendous talents for oratory and strategic thinking were displayed, and many learning points emerged. The issues explored included tactical opportunities and risks in the transitional period when the UPC and national courts will have parallel jurisdiction, including the potential use of interim injunctions at the UPC when the main proceedings are before a national court. Our litigators were particularly interested in the evidence-gathering mechanisms which will be available in the new court, including a form of ‘saisie contrefaçon’ – in what circumstances would the new Court be willing to order such an intrusive measure given the other evidential tools available to it? Similarly, would the protective letter provided for in the UPC Agreement prove to be important in the new system? A key question for patentees and alleged infringers alike was whether it would be more or less difficult to obtain a preliminary injunction at the UPC compared to the national courts with which the different patentees were familiar. Specific life-sciences issues here were whether there will be any equivalent of the English court’s requirement that generics should “clear the path” before launching a generic product and the extent to which the Court would have to consider pricing regulations and mechanisms for medicines in each of the countries concerned when balancing the interests of the parties – a considerable burden.
If you would be interested to hear more about the mock trial, please contact any of Allen & Overy’s UPC team or your usual Allen & Overy contact.