[Guest post] EPLIT’s Stockholm Congress Report

Last week, this Katfriend had the opportunity to attend for the first time the annual conference of EPLIT. This is an organization that, according to this blog’s founder, Prof Jeremy Phillips, was worth of consideration already back in 2015 (see here). Despite growing in number and weight (they also participated actively to UPC’s Code of Conduct drafting: see IPKAT here) EPLIT has maintained quite a familiar attitude among its members.

“A Swedish cat who’s an inventor” according to OpenArt.ai

Around 80 delegates attended the event in the beautiful city of Stockholm. The conference thus brought together leading experts in patent litigation from across Europe, who engaged in insightful discussions on the latest developments and challenges in the field.

The first session focused on the implications of additional states joining the Unified Patent Court (UPC). Triona Walshe (Bausch & Lomb) provided an update on the Irish government’s decision to postpone the referendum on the transfer of powers to the UPC. It was explained that initially the referendum was due to be held this year, together with other two. However, patent law and the implications of the UPC were considered to be highly technical, making it challenging to engage and inform the general public, also considering the Irish Supreme Court ruling in the “McKenna case” (1995), which held that the government cannot use public funds to campaign for a particular outcome in a referendum. So, combining the UPC referendum with more contentious issues, without government backing, could have increased the likelihood of a negative outcome, as voters could have cast protest votes against less understood measures.

Then UPC Judges Ingeborg Simonsson, Kai Harmand and Stefan Johansson provided some interesting data and figures about the decisions issued by the Nordic divisions. From the audience it was highlighted that the divisions of Copenhagen and Helsinki have not been very much involved in the process so far and that this might lead to think that their joining the Baltic Division could be a possible practical solution in the future.

The second session addressed the handling of auxiliary requests in the UPC, with a comparative analysis of the European Patent Office (EPO) practices and those of UPC (with a little flavour of national experiences too). Speakers included Tobias Wuttke (EPLIT), Bernhard Müller (EPO appeal board), András Kupecz (UPC), and Bernard Ledeboer (UPC, EPLIT).

Stockholm at 10 pm (photograph by Gabriele Girardello)

The discussants highlighted how allowing numerous and late-stage auxiliary requests can lead to protracted litigation, increased costs, and procedural chaos, ultimately undermining the efficiency and reliability of the legal system. Setting clear guidelines on when and how many auxiliary requests can be filed would be essential for ensuring procedural economy and fairness for all parties involved. That said, everyone agreed that patent holders must be given adequate opportunity to amend their claims in response to new developments during litigation.

The audience tried to force the speakers to provide a magic number (10? 500?), which obviously the discussants couldn’t provide. What emerged is however that the UPC will certainly try to find the right balance between the competing interests and that Judges are aware that the outcome of this debate will not only impact the procedural dynamics within the UPC but also set important precedents for patent litigation across Europe. The crux of the debate seemed to revolve around the principle that property must not necessarily prevail over certainty of rule of law, which also includes procedural economy (read this as: better front-loading than tactically procrastinating).

The third session focused on the preservation of evidence, specifically how the UPC is handling such requests compared to national practices. Stephanie Sarlet (EPLIT) along with Andrea Marietti are Court Appointed Experts in the enforcement of evidence preservation orders by the local UPC Courts of Brussels and Milan respectively. They were joined in the discussion by Vincent Michiels and examined the methods and standards employed by the UPC, highlighting similarities and differences within the practices in Belgium and Italy, two jurisdictions in which ex-parte evidence preservation proceedings (respectively known as saisie-contrefacon and descrizione) have been extensively employed since the adoption of the Enforcement Directive. Their contributions highlighted the need to have the documentation translated in the language of the place of execution for the benefit of bailiffs and other subjects at whom the order is addressed.

In the afternoon a session named “Case law update – UPC has been busy over the last year. What have we learned so far?” was led by Michael Wallinger (EPLIT), who went through some decisions of the UPC issued so far, some of which already covered by the UPCKat (here on change of language, here on PI, claim interpretation and opt-out) .

Finally Guno Tjon (Unilever, EPLIT), Clemens Heusch (Nokia) and Darrin Shaya (Stanley Black & Decker) provided their perspectives as senior industry representatives. They expressed an overall positive sentiment towards the UPC system, with perceptions varying a little across different industries and also depending on whether a company is primarily involved in enforcing patents or may also find itself defending against them. They noted a surprisingly high number of legal team members attending UPC hearings but attributed that to the novelty of the UPC system and the curiosity it has sparked among firms (jokes were made on the hope that not all attendees were necessarily…fee earners). In any case, it was noted that also for complex litigation cases, a team consisting of a maximum of two lawyers and two patent attorneys should suffice. It was further highlighted that, despite the establishment of the UPC, UK courts remain attractive, due to the high quality of the barristers/solicitors and Judges in the UK legal system.