Unified Patent Court gets support from IP execs although boards slow to react

Most executives tasked with protecting intellectual property support the new Unified Patent Court (UPC) in Europe, according to research from international legal firm Allen & Overy.


Most executives tasked with protecting intellectual property support the new Unified Patent Court (UPC) in Europe, according to research from international legal firm Allen & Overy.

The forthcoming UPC will offer patentees the ability to obtain broader remedies than those currently on offer in the US, with a larger customer base impacted and injunctions that are easier, cheaper and quicker to obtain. Costs for using the UPC are estimated to be at least five times lower than in the US.

Allen & Overy said these advantages alone mean there is likely to be a shift towards Europe’s UPC as a "forum of choice" to rival the US for major patent disputes. This is supported by the majority of the 150-plus European companies surveyed by Allen & Overy, who indicated they will file unitary patents with the UPC, as opposed to classic European or national patents, under the new system.

The firm's research shows that three-quarters (74 percent) of IP execs support the new patent court, saying it will be "positive" for their company, and that only 15 percent see "negative consequences" for their company.

The UPC system will go through a seven-year transition period. At the moment, said Allen & Overy, the majority of respondents are undecided on whether to put the bulk (68 percent on average) of their IP portfolio under the auspices of the UPC, although close to half (49 percent) of those surveyed said they would definitely opt in at least some of their patents. 

Crucially though, said Allen & Overy, where businesses have made a decision to opt in - about 24 percent of their portfolio on average - they are deciding to put in their most valuable, or "crown jewel" patents. 

A Dutch head of IP strategy told Allen & Overy: “The economics of a single enforcement action outweighs the risk of Europe-wide invalidation [of a patent].”

However, the research highlights an alarming lack of engagement among senior management on the UPC. Only 13 percent of those responsible for preparations for the new regime say their senior management are "fully engaged" on the issue and appreciate the potential implications. One consequence of which could see businesses lose exclusivity for their products, or worse still, have their business or products locked out of the entire continent.

"The scale of the change taking place means that companies cannot prepare for it overnight. If they don’t engage strategically with the changes now, they could find their competitors dragging them into the UPC or national patent litigation on their own terms," said Allen & Overy.

Geert Glas, head of Allen & Overy’s IP practice, said: “Time is running out before the UPC becomes active. Companies can’t afford to hesitate over one of the bigger strategic decisions their organisations will face for many years.”

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