Skip to content

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. 


Based on fictional client scenarios in the life sciences industry, four teams of lawyers were tasked with advising on possible strategic actions to leverage the opportunities (and risks) of the UPC for their clients.  During the two months in the run up to the trial, teams received information from their ‘clients’ designed to make them alter their strategic course and enter into mock correspondence. After much deliberation, they made their applications and argued their cases before mock first instance and appeal courts consisting of seven Allen & Overy intellectual property partners from five different European jurisdictions.
The exercise was not only to familiarise our team with the opportunities and pitfalls of the new regime but also to enable our lawyers from multiple jurisdictions to develop new ways of working together in the new system, which mixes civil and common law approaches.  Although many will welcome the new regime as a potential solution to the fragmented patent system currently in place in Europe, teething problems are inevitable in the new court.  As David Por, a partner in Allen & Overy’s Paris intellectual property team, emphasised, practice is essential: “The problem is not just knowing the answer to the question, but knowing what question to ask. As the new system is based on different practices across Europe the only way of understanding it properly is to further develop our understanding of how we each work”.

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.