IP Protection for Next Season’s Growth Unified Patent Court November 27, 2014 DR. EUGEN POPP LL.M.

IP Protection for Next Season’s Growth  1. Present Status   2.Economic Effects  3.Stratetic Cosiderations  4.Impact on Patent Attorneys  5.Impact on Claimants and Defendants Unified Patent Court 2

IP Protection for Next Season’s Growth  The UPC-Agreement (UPCA) was signed on 19 Feb by 25 EU-Member States  (except Spain and Poland;Croatia was at that time not a EU Member State);  The UPC will have a Central Division in Paris with branch sections in London (human necessities;drugs) and Munich (mechanical engineering) and Local/Regional Divisions.  Three Committees have to be constituted „to ensure effective operation and implementation“ of the UPCA,namely the  - Adminstrative Committee  - Budget Committee  - Advisory Committee.  For the preparation of the start of the UPC, a  - Preparatory Committee (PreCom)  was established enabling entry into force when the required number of ratifications is reached. Unified Patent Court-Present Status 3

IP Protection for Next Season’s Growth  Further, a  -Select Committee  has been established within the European Patent Office (EPO) taking care of the administrative duties where the EPO is in charge. The Preparatory Committe (PreCom) will exist until the Court is established. There are five major work streams established within the Preparatory Committee: -Legal framework -Financial aspects -IT facilities -Human resources -Training. The status of this work can be monitored on the webpage of the PreCom. Unified Patent Court-Present Status 4

IP Protection for Next Season’s Growth The updated Roadmap of the Preparatory Committee (PreCom) of the Unified Patent Court dated September 2014 reflects the aim that the Court is to be ready for operation by end of 2015, under the condition that by then 13 EU Member States will have ratified the Unified Patent Court Agreement (UPCA), incl. DE, GB and FR. Status of Ratification: Austria Aug. 6, 2013 Belgium June 6, 2014 Denmark June20,2014 France March 14,2014 Sweden June 5,2014 Unified Patent Court-Present Status 5

IP Protection for Next Season’s Growth Overall Summary of work completed 2013/14: -PreCom received an expression of interest from about 1300 candidate judges ( both for legally and technically qualified judges) and organized a pre-selction process; -PreCom set out the basic principles for the framework for the training of candidate judges; 25 candidate judges from „non-patent“ member states have been invited for training, -Acc. to a first estimation about 70 1st-instance judges will be needed for the start, most of them part time; -PreCom opened the Training Centre for the Unified Patent Court in Budapest in March 2014; -PreCom published the 16th and 17th draft of the Rules of Procedure (RoP) for the Unified Patent Court; -PreCom commenced appointment of specialists in IT procurement to compile the necessary specification for a call for tender for the UPC‘s future electronic filing and case management; the first version of a UPC e-filing/case management system prototype has been made available in October under /; / Unified Patent Court-Present Status 6

IP Protection for Next Season’s Growth The IT-prototype can be accessed using the aforementioned link, and testers can supply feedback on any aspect of their experience using the „BugHerd“ feedback application on the right-hand toolbar. -PreCom agreed and circulated a recommendation for minimum specification for facilities arrangements; -PreCom and Member States agreed Croatia as observer to the Preparatory Committee; -PreCom and Member States announced the first Regional Division of the Unified Patent Court between -Estonia, -Latvia, -Lithuania, and -Sweden; Unified Patent Court-Present Status 7

IP Protection for Next Season’s Growth -Initiated an early discussion on the arrangements for the transition from the preparatory phase to the operational phase of the new Court. This will be discaussed throughout 2015; -Established an Expert Panel to advise the Chairman of the Preparatory Committee and the working group co-ordinators on developing strategies on the UPC. -Dr. Christof Keussen and Dr. Eugen Popp are members of this Expert Panel, which had its first meeting in London on Sept. 26, The next meeting will be in February Unified Patent Court-Present Status 8

IP Protection for Next Season’s Growth Status of the different Working Groups: a) Legal framework (coordinator: Mr. Johannes Karcher-Germany) End of November 2014: Public hearing concerning the Rules of Procedure on the basis of the 17th draft rules; a1) May 2015: Agreement on Rules of Procedure in the Preparatory Committee a2) Court Fees and recoverable costs: A scale of recoverable costs ( fixed fee and value based fee above a defined ceiling of the fixed fee) shall be dicussed in the beginning of 2015 and adopted by mid of 2015; a3) Rules on the Litigation Certificate for Patent Attorneys are to be finalized early 2015 Unified Patent Court-Present Status 9

IP Protection for Next Season’s Growth b) Financial aspects (coordinator: mr. Jean F. Magana- France) b1) Implementation of the budget, internal control and audit procedures are to be fina- lized by end of 2014; b2) Pension, social security and salary schemes: Draft is expected to be finalized by March 2015; b3) Forecast for the operational costs for the first 7 years of operation, incl. the necessary Court fees: Consultation planned in spring c) IT (coordinator: Mr. Neil Feinson (United Kingdom) The procurement process has already started and shall be finalized during the last quarter of Unified Patent Court-Present Status 10

IP Protection for Next Season’s Growth Unified Patent Court-Economic Effects 11 Patent Attorneys‘ Mantra:  What is good for inventors and industry, is good for the profession!  For more than 50 years industry, in particular SME-industry has emphazised that a community or unified patent system is needed, in order to - reduce the costs - increase efficiency - increase certainty - decrease complexity.  Correspondingly, the majority of the profession supported the establishment of a European Patent with Unitary Effect and Unified Patent Court (UPC)

IP Protection for Next Season’s Growth  The question is what have we got, and what has to be considered ?  The UPC will definitely have the following benefits:  Harmonized jurisprudence as regards the interpretation of substantive patent law in respect to scope of protection and validity (guaranteed by single Court of Appeal Cost savings due to single proceedings for the territory of the participating Member States  Cost savings and high efficiency due to only one advocate or one team of advocates on each side  Cost reduction through increased competiton among Patent Attorneys and Lawyers  Fast decisions due to strict regime of timelimits, and in particular short timelimits Unified Patent Court-Economic Effects 12

IP Protection for Next Season’s Growth The UPC may have the following drawbacks:  Risk of all or nothing!  This applies both to infringement and validity  Remark: The risk of all or nothing can only be avoided by opting-out pursuent to Art. 83(3) UPCA Art. 83(1) UPCA, which allows plaintiff to start infringement action or invalidity action before a national court, is no escape, because counter- action can be started before UPC,and national court proceedings may be governed by UPCA  More complex system within Europe, since both national patent law and national Rules of Procedure, and UPCA and UPC-Rules of Procedure have to be considered  All the above and further considerations have to be made in view of strength and value of each patent/patent application Unified Patent Court-Economic Effects 13

IP Protection for Next Season’s Growth Strategic Considerations: European Patents granted before enforcement of UPCA Crown Jewel? National Court (Opt-Out) Strong Patent? Unified Patent Court yes no yes no Reduce VulnerabilityCentral Enforcement 14

IP Protection for Next Season’s Growth Strategic Considerations: European patents granted after enforcement of UPCA Crown Jewel? Validated EP (with Opt-Out) Strong Patent? Unitary Patent yes no Costs decisive ? > x Valida- tions? no yes 1 Reduce Vulnerability 2 Central Enforcement 3 Saves Annual Fees 4Without ES and IT x = number of validations, where costs for uni- tary patent same as for classical EP

IP Protection for Next Season’s Growth No Pain No Gain ! Unified Patent Court-Economic Effects 16

IP Protection for Next Season’s Growth PAINS  Less validation work, incl. administrative and translation work  Less cross border litigation work within Europe  Less cross border legal advisory work, since unitary should be unitary!  More European-wide competition with respect to litigation GAINS  Additional litigation competence all over Europe, and correspondingly expanded business  Nullity actions beside or instead of oppositions (two options for central attack)  More sophisticated legal and strategic advisory work ( national vs. unitary )  National patents/utility models vs. classic European patents vs. unitary patents  Field of competence increased, which cannot easily be grazed down by service providers  European-wide awareness of patents, and corresponding business Unitary Patent Court-Impact on Patent Attorneys 17

IP Protection for Next Season’s Growth Summary of pro‘s and con‘s of switch to UPC as result of a survey made by EUROPE ECONOMICS Unitary Patent Court-Impact on Claimants and Defendants 18 Gains for Claimants: Smallest gains were expected to arise from cost-saving and effectiveness Largest gains expected to arise from simplicity and speed of decision-making Gains for Defendants: Smallest gains expected to arise from cost savings Largest gains expected to arise from simplicity Pains for Claimants: Smallest expected pains from risk of injunction gap due to bifurcation Largest expected pains were those associated with lack of familiarity with the procedures of the new system and about costs Pains for the Defendants: Smallest pains from inconvenience and complexity Largest pains from uncertainty and from risk of third-party obtaining an injunction before rulings on validity

IP Protection for Next Season’s Growth Tel. +49(0) , Fax +49(0) , CONTACT Thank you for your Attention!